Date: 20000209
Docket: T-72-99
Ottawa, Ontario, February, 9, 2000
Before: Pinard J.
Between:
MARCEL MORISSETTE,
3140 Route 108 est,
Lennoxville, Quebec J1M 2A2,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER
The application for judicial review is dismissed with costs.
| YVON PINARD JUDGE |
Certified true translation
Martine Brunet, LL. B.
Date: 20000209
Docket: T-72-99
Between:
MARCEL MORISSETTE,
3140 Route 108 est,
Lennoxville, Quebec J1M 2A2,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER
PINARD J.
[1] This application for judicial review relates to a decision on December 21, 1998 by an adjudicator appointed by the Public Service Staff Relations Board, dismissing a grievance filed by the plaintiff against the suspension without pay imposed on him on December 20, 1995, followed by his dismissal on February 5, 1996.
[2] The plaintiff Marcel Morissette was employed by Agriculture and Agri-Food Canada. In 1995 he held the position of supervisor at the pig section. At that time he supervised a team of five employees.
[3] On October 19, 1995 a subordinate employee, Ms. X, filed a complaint of sexual harassment against him. On October 26, 1995 the employer submitted the complaint to a private firm, Le Groupe J.L., for investigation. On December 11, 1995 this firm reported that the complaint was valid.
[4] On December 20, 1995 the plaintiff was suspended from duties without pay. This suspension was transformed into a dismissal on February 5, 1996: hence his grievance, which the designated adjudicator dismissed by the subject decision of December 21, 1998.
[5] After a detailed analysis of the evidence the adjudicator, considering that the employer had discharged the burden of showing that the plaintiff's suspension and dismissal were justified, dismissed his grievance. In the opinion of the adjudicator, the plaintiff had engaged in sexual harassment and contributed to poisoning Ms. X's work environment. In particular, the adjudicator found that:
the plaintiff subjected employees almost daily to humorous remarks with sexual connotations;
the plaintiff drew parallels between pigs and women, spoke to Ms. X and another employee regularly about his own sex life and showed a tendency to talk about genital organs;
the plaintiff engaged in touching women who worked under his supervision, and they did not appreciate this kind of familiarity;
the plaintiff regularly appeared in shorts before his employees, despite their protests.
[6] Moreover, the adjudicator did not accept the plaintiff's testimony, for the following reasons:
the plaintiff did not mention his fear Ms. X might commit suicide until the hearing before the Board;
the plaintiff contradicted himself by admitting that he did not believe Ms. X's threat of suicide in March 1995 for very long; and
the plaintiff refused to accept responsibility for his conduct.
[7] Additionally, the adjudicator considered Ms. X's testimony as detailed and frank and concluded that she was credible. In light of this testimony and that of her fellow workers, the circumstantial evidence and Dr. Guérin's report, the adjudicator not only found that Ms. X was ill at the time she had sexual relations with the plaintiff, but the latter took advantage of this woman's weakness when he knew she was depressed, suicidal and under the effect of medication. The adjudicator considered in particular that the plaintiff had not discharged his duty of providing Ms. X with a workplace free from sexual harassment.
[8] Finally, the adjudicator came to the conclusion that the plaintiff had threatened employees working under his authority in order to induce them to oppose Ms. X's complaint and influence their testimony to the investigator, concluding that the plaintiff had in this way adopted an attitude equivalent to an abuse of authority.
* * * * * * * * * * * *
[9] The adjudication of the plaintiff's grievance and the adjudicator's decision that resulted are governed by the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the Act"), especially ss. 92 to 97. The standard of judicial review of such a decision by an adjudicator is that of a patently unreasonable decision. In this regard I concur entirely in the following observations of my brother Mackay J. in Teeluck and Her Majesty the Queen in Right of Canada (Treasury Board) (October 6, 1999), T-1825-98, where he said the following:
. . . In Canada (Attorney General) v. Cleary [[1998] F.C.J. No. 1920 (QL), Court No. T-1533-96, at para 2] Mr. Justice Rothstein, then of this court, held,
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. In other words, the error must be obvious. See Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 at 239-240 (F.C.A.).
That reflects the standard earlier enunciated for review of decisions of the Board when its statute contained a privative clause, by the Supreme Court of Canada in Canada (Attorney General) v. PSAC [[1993] 1 S.C.R. 941]. In that case, Mr. Justice Cory, speaking for the majority of the Court, said in part:
... Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "not having the faculty of reason, irrational, not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
. . . . .
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational. [[1993] 1 S.C.R. 941 at 962-964.]
The repeal of the privative clause formerly found in its enabling statute does not mean that decisions of the Public Service Staff Relations Board are now more readily set aside. As said by Mr. Justice Bastarache for the Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration) [[1998] 1 S.C.R. 982 at para. 30],
the absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard.
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.
[10] Section 95.1 of the Act provides that for hearing or disposing of a grievance an adjudicator exercises the powers of the Board mentioned in s. 25(a) to (e) of the Act. Section 25(c) reads as follows:
| 25. The Board has, in relation to the hearing or determination of any proceeding before it, power . . . . . (c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it sees fit, whether admissible in a court of law or not and, without limiting the generality of the foregoing, to refuse to accept any evidence that is not presented in the form and within the time prescribed . . . |
25. En ce qui concerne l'audition ou le règlement de toute affaire dont elle est saisie, la Commission peut: . . . . . c) recevoir et accepter, sous serment, par affidavit ou sous toute autre forme, les éléments de preuve et les renseignements qu'elle juge appropriés, qu'ils soient admissibles ou non en justice, et notamment refuser tout élément de preuve qui n'est pas présenté dans la forme et au moment prévus par règlement . . . |
[11] Here again, I concur without reservation in the opinion of my brother MacKay J. in Teeluck, supra, when he speaks of the broad latitude given to an adjudicator to accept and hear evidence of relevant facts without procedural limitations:
Parliament has seen fit to give administrative tribunals, such as the adjudicator or the Board in this case considerable latitude to accept and hear evidence without getting tied up in objections and procedural wrangling. Such an arrangement is conducive to informal hearings where all relevant materials can be brought before the tribunal for expedited review.
The special evidentiary provision of the Public Service Staff Relations Act is not unique. Every province, in fact, has enacted substantially similar provisions to give adjudicators in the labour and employment milieu wide latitude when considering disputes.
In United Brotherhood of Carpenters and Joiners of America (CJA), Local 579 v. Bradco Construction Ltd. [[1993] 2 S.C.R. 316] the Supreme Court of Canada considered a provision of the Newfoundland Labour Relations Act, 1977 [S.N. 1977, c. 64, s. 84(1)], similar to paragraph 25(c) of the Act here in issue. Mr. Justice Sopinka, writing for the Court, commented as follows:
Section 84(1) of The Labour Relations Act, 1977 provides that the arbitrator may receive and accept such evidence as he deems advisable whether or not it would be admissible in a court of law. ... While provisions such as these do not oust judicial review completely, they enable the arbitrator to relax the rules of evidence. This reflects the fact that arbitrators are often not trained in the law and are permitted to apply the rules in the same way as would be done by reasonable persons in the conduct of their business. Section 84(1) evinces a legislative intent to leave the these matters to the decision of the arbitrator. Accordingly, an arbitrator's decision in this regard is not reviewable unless it is shown to be patently unreasonable. ... [[1993] 2 S.C.R. 316 at 343-344.]
That comment applies to paragraph 25(c) of the Public Service Staff Relations Act. The decisions of adjudicators on evidentiary matters are not generally reviewable unless they are found to be patently unreasonable, or irrational.
[12] I reviewed the case and considered the submissions of the parties with all these principles clearly in mind. In so far as the plaintiff's submissions largely deal essentially with the assessment of facts, which in practice covers everything he described as an error of law, in particular regarding the penalty of dismissal, the plaintiff did not persuade me that the adjudicator's very elaborate decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her. Accordingly, it is not possible here to speak of a patently unreasonable decision, that is a decision which is clearly irrational.
[13] As to the plaintiff's argument that he was the victim of procedural injustice because, on the one hand, the adjudicator did not allow him to obtain the medical information requested from Ms. X by subpoena, and on the other, denied him an opportunity to submit expert evidence regarding his own personality, I find this to be without merit.
[14] As to the medical evidence requested from Ms. X, when the adjudicator's hearings resumed in 1998 she was not present as she was ill. However, Ms. X, who had testified at her examination in chief, was cross-examined at length at that time by the plaintiff. The latter had every opportunity at that time to question Ms. X about her state of health. If he did not do so to his satisfaction, he has only himself to blame. Further, the plaintiff had the right to have Ms. X examined by an expert, which he did not do. Finally, Dr. Mark Morin had the complainant's medical file available to him at the time of her testimony and his expert report mentioned this medical file: it would not appear that anyone prevented the plaintiff from examining him on this point. In my opinion, in the circumstances the adjudicator was entirely justified in refusing to recall Ms. X.
[15] On the submission of expert evidence dealing with the plaintiff's personality, established by the weight of available relevant evidence (namely transmittal slips sent on May 19, 1998 to counsel for the defendant and the Assistant Secretary of the Board, the affidavit by the plaintiff himself and that of the official Jean Sicotte), this simply concerns the fact that when the hearings resumed in May 1998 the plaintiff's request to postpone his expert witness' testimony to a later date was denied by the adjudicator, as the latter said that at that time she was not persuaded that this evidence was relevant. It is true that the plaintiff had earlier announced his intention of submitting expert evidence on his personality, which he could not do when the hearings resumed in May 1998 in view of the relatively recent death of the specialist he had consulted. However, in view of the length of the hearings and the announced intention of the plaintiff to call all his other witnesses and testify himself when it resumed in May 1998, it was then entirely reasonable for the adjudicator to question the relevance of the expert evidence at issue. The plaintiff did not wish to provide the adjudicator with any information as to the nature and value of the evidence he wanted to call on his personality, although at the time he had in his possession a draft of the report by his first deceased expert witness. In view of the fact that the adjudicator did not allow Dr. Guérin to testify on the plaintiff's personality, which confirmed her decision, I consider that taking all these circumstances into account it was unreasonable for her to reject the plaintiff's request at that time.
[16] Additionally, the absence of one Ms. Vanier whom the plaintiff wanted to call to testify prevented the hearing from concluding in May 1998 and the adjudicator again had to adjourn the hearing, this time to fall 1998. At this adjournment the employer's representative indicated to the plaintiff's counsel that it would be desirable for her to send the report by her expert witness in advance if she ever decided to call the latter when the hearing resumed. The plaintiff did not subsequently indicate any intention to call an expert witness before the adjudicator. Nevertheless, there was nothing to prevent him, between the May 1998 adjournment and the resumption of the hearing in October 1998, obtaining a report from his new expert witness, which he had indicated he could obtain in August 1998, informing the opposing party at the proper time and renewing his request to submit this evidence with less reluctance to make comments on its relevance. Even now no one has any idea what the plaintiff intended to show regarding his personality that could have justified the adjudicator in reaching any other decision than the one she did reach.
[17] Finally, the extraordinary latitude that must be given to an adjudicator appointed under the Act in procedural matters, to which I referred above, is a further persuasive reason leading me to find that the allegation of procedural injustice made by the plaintiff was without basis.
[18] As the plaintiff did not persuade the Court that the adjudicator made any error which could justify its intervention, the application for judicial review is dismissed with costs.
| YVON PINARD JUDGE |
OTTAWA, ONTARIO
February 9, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-72-99
STYLE OF CAUSE: Marcel Morissette v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 13, 2000
REASONS FOR ORDER BY: Pinard J.
DATED: February 9, 2000
APPEARANCES:
Linda Boulanger FOR THE PLAINTIFF
Raymond Piché FOR THE DEFENDANT
SOLICITORS OF RECORD:
Linda Boulanger FOR THE PLAINTIFF
Lennoxville, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec