BETWEEN:
and
Heard at Ottawa, Ontario, on April 17, 2007.
Judgment delivered at Ottawa, Ontario, on May 17, 2007.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: PELLETIER J.A.
MALONE J.A.
Docket: A-169-06
Citation: 2007 FCA 192
CORAM: SEXTON J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
LILLIAN SHNEIDMAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from a decision of Simpson J. of the Federal Court in Attorney General of Canada v. Lillian Shneidman, 2006 FC 381. In the court below, Justice Simpson allowed an application for judicial review by the Attorney General of Canada (the “Employer”) from a decision of an adjudicator appointed under the Public Service Staff Relations Act, R.S.C., c. P-35 (the “Adjudicator”), in which the Adjudicator determined that the termination of Lillian Shneidman’s employment with the Canada Customs and Revenue Agency (“CCRA”) was void ab initio.
[2] For the reasons that follow, I would dismiss the appeal.
FACTUAL BACKGROUND
[3] Ms. Shneidman was employed as a Non-Filer/Registrant Field Officer in the Enforcement and Verification Division of the Toronto North, Tax Services Office of the CCRA. In 2001, an investigation was conducted by the Employer’s Internal Affairs Division into allegations that Ms. Shneidman had accessed confidential taxpayers’ information without authorization, and had disclosed that information to a third party.
[4] On March 7 and 8, 2001, Ms. Shneidman met with Normand Rodrigue, a Senior Investigator with the Employer’s Internal Affairs Division Security Directorate assigned to investigate the allegations. Ms. Shneidman asked Mr. Rodrigue prior to the first meeting whether she should have a union representative present. He responded that there would be no point because the union representative would not be permitted to make representations during the meeting. Ms. Shneidman therefore attended the meetings without a union representative.
[5] After his investigation, Mr. Rodrigue prepared an investigation report in which he concluded that the allegations against Ms. Shneidman had been substantiated. Ms. Shneidman was asked to prepare a response to the investigation report. To assist her in preparing this response, the Employer was prepared to allow Ms. Shneidman to view a redacted version of the report with her union representative. However, Ms. Shneidman’s request to view the complete report with the assistance of her union representative was refused. She was told that she would be permitted to read the complete version of the report in the presence of her union representative, but that the union representative could not see the report, nor could Ms. Shneidman take notes while reviewing that version of the report. The Employer took the position that the redacted portions could not be revealed except to Ms. Shneidman because they contained confidential taxpayer information. Ms. Shneidman deemed these conditions unsatisfactory and therefore did not prepare a response to the report. On May 18, 2001, Ms. Shneidman’s employment with the CCRA was terminated.
[6] Ms. Shneidman grieved the termination on May 24, 2001. The grievance provided as follows:
I grieve the letter of dismissal given to me on May 18, 2001 by Don Collins and signed by Gerry Troy. I maintain that this decision to terminate my employment is unwarranted, unreasonable, excessive and without just, reasonable and sufficient cause.
[7] The CCRA’s grievance procedure requires that grievances dealing with termination are first considered at the final level of the internal grievance process. Ms. Shneidman’s grievance was denied at this level on June 26, 2003. She therefore referred her grievance to adjudication and a hearing was scheduled for May 25 to 28, 2004.
[8] One week prior to the hearing, on May 18, 2004, Ms. Shneidman raised a preliminary objection, arguing that her rights under article 17.02 of the collective agreement between the Public Service Alliance of Canada and the CCRA had been violated when she was denied union representation at her meetings with Mr. Rodrigue and in reading the unredacted version of the investigation report. Article 17.02 provides as follows:
When an employee is required to attend a meeting, the purpose of which is to conduct a disciplinary hearing concerning him or her or to render a disciplinary decision concerning him or her, the employee is entitled to have, at his or her request, a representative of the Alliance attend the meeting. Where practicable, the employee shall receive a minimum of one day’s notice of such a meeting.
[9] According to Ms. Shneidman, the violation of article 17.02 rendered her termination void ab initio.
[10] The Adjudicator’s decision regarding this preliminary objection was the subject of judicial review before Justice Simpson and is now the subject of the appeal to this Court.
DECISIONS BELOW
1) Decision of the Adjudicator
[11] The first issue addressed by the Adjudicator was whether she had jurisdiction to consider the preliminary objection, a question that turned on whether the wording of the grievance was broad enough to include a challenge to the validity of the disciplinary action because of a denial of contractual due process. The Adjudicator concluded that the grievance was sufficiently broad to give her jurisdiction over the preliminary objection. In her view, the grievance language encompasses any argument that challenges the validity of the termination of employment, including the claim that the termination was void ab initio because of a violation of contractual due process.
[12] Next, the Adjudicator looked to article 17.02 and considered whether the term “disciplinary hearing” used in the provision includes the investigatory meetings with Mr. Rodrigue and the viewing of the unredacted investigation report. In the Adjudicator’s view, these situations were both disciplinary hearings. Denying Ms. Shneidman union representation, therefore, amounted to a violation of article 17.02. The appropriate remedy for this violation, according to the Adjudicator, was to render the termination of Ms. Shneidman’s employment void ab initio.
2) Decision of Simpson J.
[13] In the Federal Court, Simpson J. held that the Adjudicator had incorrectly taken jurisdiction over the preliminary objection and thus allowed the application for judicial review on that basis.
[14] According to Justice Simpson, section 92 of the Public Service Staff Relations Act, R.S.C., c. P-35 (“PSSRA”), which dictates the types of grievances that may be referred to adjudication, distinguishes between grievances relating to collective agreements and grievances relating to termination of employment. In her view, Ms. Shneidman’s grievance relates only to the Employer’s decision to terminate Ms. Shneidman’s employment, not to violations of the collective agreement. Because the grievance did not invoke the collective agreement, Justice Simpson concluded that the Adjudicator had no jurisdiction to consider the effect of article 17.02. Accordingly, she set aside the decision of the Adjudicator. In light of this holding, Simpson J. found it unnecessary to consider the other aspects of the Adjudicator’s decision.
STANDARD OF REVIEW
[15] A point of considerable divergence between the parties is the standard of review to be applied to the Adjudicator’s conclusion that she had jurisdiction over Ms. Shneidman’s grievance. In the court below, Simpson J. reviewed the Adjudicator’s decision against a standard of correctness. Ms. Shneidman submits that the pragmatic and functional analysis should have directed Justice Simpson to apply a standard of patent unreasonableness. The Employer, conversely, supports Justice Simpson’s conclusion that a standard of correctness is appropriate in the circumstances.
[16] It is now well-established that courts reviewing the decisions of administrative decision-makers must apply the pragmatic and functional approach to determine the applicable standard of review: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 25 (“Dr. Q”), Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 21, Pusphanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 27 (“Pushpanathan”). The Supreme Court of Canada has explained that questions which are jurisdictional in nature are nevertheless to be subject to the pragmatic and functional inquiry: Pusphanathan at paragraph 28. The pragmatic and functional approach involves consideration of four contextual factors: the nature of the question at issue, the relative expertise of the tribunal, the presence or absence of a privative clause or statutory right of appeal, and the purpose of the legislation and the provision in particular: Dr. Q at paragraph 26. The Supreme Court has stressed, however, that the factors should not be applied mechanically; the task for the Court in conducting the analysis is to ascertain the core issues affecting the appropriate standard of review: Dr. Q at paragraph 26.
[17] In the present case, this Court stands in review of a decision of the Federal Court. At this secondary appellate level, the role for the Court is to assess whether the reviewing judge chose and applied the correct standard of review. Thus, the normal standards of appellate review articulated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (“Housen”) apply: Dr. Q at paragraph 43, Davies v. Canada (Attorney General), 2005 FCA 41 at paragraph 7 (“Davies”). Questions of law are reviewed on a standard of correctness: Housen at paragraph 8. Questions of fact are reviewed on a standard of palpable and overriding error: Housen at paragraph 10. Questions of mixed fact and law are likewise reviewed on a standard of palpable and overriding error, unless the lower court judge made an extricable error of law: Housen at paragraph 37. The lower court’s assessment of the proper standard of review is a matter of law to be reviewed against a standard of correctness: Davies at paragraph 8. Consequently, it is appropriate for this Court to conduct its own pragmatic and functional analysis to assess whether Justice Simpson identified the correct standard with which to review the Adjudicator’s decision.
[18] The first factor relevant to the pragmatic and functional analysis is the nature of the question at issue. The question that concerns us here is whether the Adjudicator properly interpreted the criteria setting out the boundaries of an Adjudicator’s jurisdiction in subsection 92(1) of the PSSRA. This is a pure question of law and thus suggests that little deference should be shown to the Adjudicator’s decision.
[19] A second factor bearing on the appropriate standard of review is the relative expertise of PSSRA adjudicators relative to the expertise of courts in assessing the question at issue. Decision-makers under the PSSRA have been found to have considerable expertise in labour relations matters such as the interpretation of collective agreements: Public Service Alliance of Canada v. Canada (Canadian Food Inspection Agency), 2005 FCA 366, Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at page 952 (“PSAC”). However, this Court has held that PSSRA adjudicators cannot claim expertise in interpreting the PSSRA, a factor that suggests less deference should be accorded to such decisions: Canada v. Marinos, [2000] 4 F.C. 98 at paragraph 16 (F.C.A.).
[20] The other factors to be considered are the presence or absence of a privative clause and statutory right of appeal, and the purpose of the legislation. The PSSRA contains neither a privative clause nor a statutory right of appeal, thus favouring neither a high nor low level of deference to the Adjudicator’s decision. Finally, the purpose of the legislation is to provide federal public service employees an effective system of redress for their grievances, a factor that may suggest some deference is owed: PSAC at 952, Canada (Attorney General) v. Assh, 2005 FC 734 at paragraph 9.
[21] Viewed in their totality, these factors lead me to conclude that Simpson J. correctly held that the appropriate standard of review to be applied to the Adjudicator’s decision regarding her jurisdiction to hear Ms. Shneidman’s complaint is correctness.
ANALYSIS
[22] The sole question considered by the Adjudicator in her analysis of the jurisdictional issue was whether the text of Ms. Shneidman’s grievance was broad enough to encompass a claim that her termination was void ab initio because of a violation of her procedural rights under the collective agreement. In the Adjudicator’s view, the grievance was sufficiently broad. She therefore concluded that she had jurisdiction over the preliminary objection.
[23] On judicial review, Justice Simpson agreed that the issue was whether the grievance could be read to encompass pre-termination violations of the collective agreement. She concluded, however, that the grievance did not encompass a complaint about violations of article 17.02 of the collective agreement. Justice Simpson therefore allowed the appeal.
[24] In my view, however, before considering the breadth of the grievance, it was necessary to ask whether Ms. Shneidman “presented a grievance” regarding the violation of her rights under article 17.02 of the collective agreement to the final level within the meaning of the opening words of subsection 92(1) of the PSSRA. Whether or not the language of the grievance is potentially broad enough to include a complaint that the collective agreement has been violated, the complaint will not be permitted to proceed to adjudication, and thus will not be in the adjudicator’s jurisdiction, unless it has been specifically raised at the final level. Neither the Adjudicator nor Justice Simpson considered this preliminary question of whether the specific claims relied upon by Ms. Shneidman before the Adjudicator had been raised at the final level. After considering this question, I find no basis for interfering with Simpson J.’s conclusion that the Adjudicator erred in taking jurisdiction over Ms. Shneidman’s complaint that her collective agreement rights were violated.
[25] Subsection 92(1) of the PSSRA sets out criteria for referring a grievance to adjudication. It directs that only those grievances presented “up to and including the final level in the grievance process” can be referred to adjudication:
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92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(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, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
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92. (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l’arbitrage tout grief portant sur :
a) l’interprétation ou l’application, à son endroit, d’une disposition d’une convention collective ou d’une décision arbitrale;
b) dans le cas d’un fonctionnaire d’un ministère ou secteur de l’administration publique fédérale spécifié à la partie I de l’annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
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[26] To refer a complaint to adjudication, the grievor must have given her employer notice of the specific nature of her complaints throughout the internal grievance procedure: Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 at paragraph 28 (F.C.T.D.) (“Rinaldi”). As Thurlow C.J. (as he then was) indicated in Burchill v. Canada, [1981] 1 F.C. 109 (F.C.A.), only those grievances that have been presented to and dealt with by all internal levels of the grievance process may subsequently be referred to adjudication:
In our view, it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1). Under that provision it is only a grievance that has been presented and dealt with under section 90 and that falls within the limits of paragraph 91(1)(a) or (b) that may be referred to adjudication. In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid. Consequently, he had no such jurisdiction.
(See also Schofield v. Canada (Attorney General), 2004 FC 622)
[27] Where the grievance on its face is sufficiently detailed, the employer will have notice of the nature of the employee’s grievance at all levels. However, where, as here, it is not clear on the face of the grievance what grounds of unlawfulness will be relied upon by the employee, the employee must provide further specification at each stage of the internal grievance process as to the exact nature of her complaint if she intends to refer the matter to adjudication.
[28] Both parties benefit from this notice requirement. The employer must understand the nature of the allegations to be able to adequately respond to them. The employee likewise benefits from the notice requirement because it allows her to understand the reasons why the employer has rejected her grievance. Indeed, the notice requirement has been found to be a critical component of the conciliation process provided for in the PSSRA: Rinaldi at paragraph 22.
[29] In the present case, although the wording of Ms. Shneidman’s grievance might arguably have been broad enough to encompass violations of contractual due process, a person reading the grievance would not know that she intended to allege that her rights to union representation under article 17.02 of the collective agreement had been violated. Ms. Shneidman implicitly acknowledged this fact when she advised the Public Service Staff Relations Board by letter one week prior to the hearing before the Adjudicator of her intention to raise the issue of the violation of the collective agreement at the outset of the hearing.
[30] Consequently, if she intended to raise the issue relating to representation by her union representative as part of her grievance, Ms. Shneidman was required to make submissions to this effect at the final level. She failed to do so and therefore it was not open to her to raise the argument in front of the Adjudicator. In answer to a question as to what notice had been provided by Ms. Shneidman with respect to the issue of lack of union representation, counsel for both parties could only point to two letters written by Ms. Shneidman. In the first letter, dated May 15, 2001, from Ms. Shneidman to Don Collins, Assistant Director, Revenue Collections, Ms. Shneidman does make reference to the denial of appropriate union representation. However, this cannot be sufficient to present the grievance at the final level because the letter preceded the filing of the grievance, which took place on May 24, 2001. Indeed, the letter even preceded her dismissal. The second letter, dated May 29, 2001, from Ms. Shneidman to Rob Wright, Commissioner, CCRA, contains no reference to the denial of union representation. The Adjudicator therefore did not have jurisdiction to consider Ms. Shneidman’s preliminary objection.
[31] Having found that the Adjudicator erred in holding that she had jurisdiction over Ms. Shneidman’s preliminary objection, it is unnecessary to consider the additional issues raised in this appeal, namely, whether article 17.02 of the collective agreement was violated and the appropriate remedy for any such violation.
DISPOSITION
[32] For the foregoing reasons, I would dismiss the appeal with costs.
"J. Edgar Sexton"
"I agree
J.D. Denis Pelletier J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-169-06
APPEAL FROM AN ORDER OF THE HONOURABLE MADAM JUSTICE SIMPSON DATED MARCH 24, 2006, NO. T-1817-04
STYLE OF CAUSE: LILLIAN SHNEIDMAN v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 17, 2007
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: PELLETIER J.A.
MALONE J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, Ontario
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FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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