Date: 20040311
Docket: T-224-02
Citation: 2004 FC 342
Ottawa, Ontario, this 11th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Selwyn Pieters is a former employee of the Registry of the Federal Court. He was employed for a six-month term running from June 14, 1999 to December 14, 1999.
[2] After the expiry of his term, Mr. Pieters registered a grievance under the applicable collective agreement. He alleged that the failure to renew his term amounted to constructive dismissal from his position. In support of his claim, he set out in writing a lengthy description of the mistreatment he alleged to have received during the course of his employment. A first-level adjudicator dismissed his grievance because: (1) the grievance had been filed out of time; and (2) the expiry of a term position is not a dismissal. Mr. Pieters took the matter to the next level under the available procedures. Mr. Robert Biljan, Administrator of the Federal Court of Canada, as he then was, reviewed the matter and dismissed the grievance on the same grounds as the adjudicator.
[3] Mr. Pieters has sought judicial review of three decisions - the decision not to renew his term, the adjudicator's decision dismissing his grievance and the subsequent decision of the Administrator.
[4] The respondent objects to the joinder of all three judicial review applications. According to Rule 302 of the Federal Court Rules, 1998, SOR/98-106, an application for judicial review is limited to a single order unless the Court orders otherwise. Further, where a decision under review results from an appeal, the Court should only review the appellate judgment; the original decision is not before the Court: Unrau v. Canada (Attorney General), [2000] F.C.J. No. 1434. Accordingly, I will deal with Mr. Pieters' application only in relation to the latest decision in this matter; that is, the Administrator's dismissal of his grievance.
I. Issues
[5] Mr. Pieters raises five issues:
1. What is the applicable standard of review?
2. Did the Administrator's decision fail to meet the applicable standard?
3. Do the grievance procedures prevent a fair hearing?
4. Is there a reasonable apprehension of bias?
5. Was Mr. Pieters denied his right to equality under s. 15 of the Charter?
[6] I can find no error on the part of the Administrator and, therefore, must dismiss this application for judicial review.
II. Analysis
1. What is the applicable standard of review?
[7] As mentioned, the Administrator made two findings. The first was purely a question of fact - whether the grievance had been filed out of time. The second was a question of law - whether expiry of a term position can amount to a dismissal.
[8] On the first issue, the Administrator's decision deserves considerable deference. Indeed, such decisions are considered "final and binding" under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, s. 96(3). In addition, the Administrator had overall supervisory responsibility for personnel at the Registry and considerable experience and expertise in that regard. I should only intervene if I find his decision to be patently unreasonable.
[9] However, in respect of the second issue, I would apply a standard of correctness. This is a matter on which the expertise of the Court is equal to or greater than that of the decision-maker.
2. Did the Administrator's decision fail to meet the applicable standard?
[10] Mr. Pieters received a letter on November 23, 1999 reminding him that his term would expire on December 14, 1999. Under the collective agreement (Art. 18.10), any grievance had to be filed no later than 25 days after the employee became aware of the subject matter of the grievance. Taking account of holidays, Mr. Pieters should have filed his grievance by January 4, 2000. His papers were dated December 24, 1999 but were post-marked January 12, 2000. The collective agreement specifically stated that the relevant date is the date on which the grievance is post-marked (Art. 18.06). The first-level adjudicator held that Mr. Pieters' grievance was "denied on the grounds of timeliness".
[11] The Administrator agreed with the adjudicator's finding. His letter to Mr. Pieters set out his finding that the grievance "was filed outside the prescribed time limits as provided in Article 18.10 of your collective agreement and, is therefore denied".
[12] Mr. Pieters has presented no persuasive grounds for disturbing the Administrator's factual finding on the timeliness of his grievance.
[13] In respect of the issue whether Mr. Pieters had been "dismissed", the first-level adjudicator found that the expiry of a term of employment was not a dismissal based on her interpretation of s. 25 of the Public Service Employment Act, R.S.C. 1985, c. P-33. That provision simply states that "[a]n employee who is appointed for a specified period ceases to be an employee at the expiration of that period". Given that Mr. Pieters' grievance had complained of "constructive dismissal" from his position, the adjudicator effectively found that there was no basis for the grievance.
[14] Again, the Administrator agreed with the adjudicator's decision. His letter to Mr. Pieters states "your employment was not a 'dismissal' but rather the expiration of a 'specified term' under section 25 of the Public Service Employment Act". His decision is supported by considerable case law: Mireille Dansereau v. National Film Board and Pierre-André Lachapelle, [1979] 1 F.C. 100 (QL) (C.A.); Eskasoni School Board/Eskasoni Band Council v. MacIsaac, [1986] F.C.J. No. 263 (QL) (C.A.); Marta v. Treasury Board (Royal Canadian Mounted Police), [2001] C.P.S.S.R.B. No. 21, 2001 PSSRB 31, File No. 166-2-29643.
[15] Accordingly, the Administrator's decision accords with the governing statute, as well as the prevailing jurisprudence. Mr. Pieters has not presented any authorities that would cast doubt on the Administrator's decision on this issue. In my view, it was correct.
[16] Therefore, there is no basis on which to question the Administrator's decision on either of the two main grounds Mr. Pieters relied on. The remaining question is whether there are other grounds on which the Administrator's decision may be challenged.
[17] The three additional grounds Mr. Pieters has raised are the following:
3. Do the grievance procedures prevent a fair hearing as guaranteed by s. 2(e) of the Canadian Bill of Rights?
4. Was there a reasonable apprehension of bias?
5. Was Mr. Pieters denied his right to equality under s. 15 of the Charter?
[18] The respondent objects to these issues being raised at this stage since none of them was raised during the grievance proceedings themselves. This means that there is no factual record on which to base an informed consideration of them and no decision taken on them that might be subject to judicial review.
[19] In parallel proceedings to these, McKeown J. struck out Mr. Pieters' civil action against the Crown on the ground that the proper mechanism for raising all of the issues relating to his employment was by way of grievance and judicial review. For example, in respect of the Charter issues, McKeown J. held that Mr. Pieters "could have presented these issues before an adjudicator. If the adjudicator had refused to hear such issues, the Plaintiff would have been entitled to present them to the Federal Court on an application for judicial review of the adjudicator's decision": Pieters v. Her Majesty the Queen, 2001 F.C.T 496, [2001] F.C.J. No. 769 (QL) (T.D.) at para. 15; affirmed, [2001] F.C.J. 1756, (2001) 288 N.R. 60 (F.C.A.).
[20] Generally speaking, the courts will not intervene in areas where Parliament has provided an alternative dispute resolution process, such as the grievance procedure under the Public Service Staff Relations Act: Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (C.A.). Employees must, therefore, present all of the issues arising in their grievances to the persons with decision-making authority under that Act.
[21] With respect to Mr. Pieters' Charter claims, I agree with what McKeown J. stated in dismissing the civil action:
[T]he Plaintiff could have proceeded by way of an adjudication and judicial review thereof, or by judicial review of the filed grievance. The Court could have dealt with the Charter issues under either of these scenarios. However, the Plaintiff did not raise the Charter in the process of the grievance procedure. (Pieters v. Her Majesty the Queen, above, at para. 18.)
[22] In due course, Mr. Pieters indeed referred his concerns to the Public Service Staff Relations Board for adjudication. However, the Board dismissed his application on the basis that it had no jurisdiction over it, given that the expiry of Mr. Pieters' term position was not a "termination of employment". (Pieters v. Treasury Board (Federal Court of Canada)), [2001] C.P.S.S.R.B. No. 78.
[23] As for the other issues Mr. Pieters purports to raise - the fairness issue and the matter of apprehension of bias - I agree with the respondent that Mr. Pieters cannot raise these issues afresh on judicial review. The proper place to have raised them was before the decision-makers on his grievance. I would further note that the issue of bias was not raised in Mr. Pieters' application for judicial review, but solely in his written submissions.
[24] Therefore, I must dismiss this application for judicial review with costs.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed with costs.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-224-02
STYLE OF CAUSE: SELWYN PIETERS v. THE ATTORNEY GENERAL OF CANADA
HEARING DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES IN: Ottawa, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Selwyn Pieters FOR THE APPLICANT
Joseph K. Cheng FOR THE RESPONDENT
SOLICITORS OF RECORD:
SELWYN PIETERS FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Annex
| Federal Court Rules, 1998, SOR/98-106
Limited to single order 302. Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
Public Service Staff Relations Act, R.S.C. 1985, c. P-35
Jurisdiction of Adjudicator Binding effect 96. (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
Public Service Employment Act, R.S.C. 1985, c. P-33.
Term appointments 25. An employee who is appointed for a specified period ceases to be an employee at the expiration of that period. |
|
Règles de la Cour fédérale (1998), DORS/98-106
Limites 302. Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée
Loi sur les relations de travail dans la fonction publique, L.R.C. 1985, ch. P-35
Compétence de l'arbitre Décision définitive et obligatoire 96. (3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché.
Loi sur l'emploi dans la fonction publique, LRC 1985, ch. P-33.
Nomination pour une période déterminée 25. Le fonctionnaire nommé pour une période déterminée perd sa qualité de fonctionnaire à l'expiration de cette période. |