Ottawa, Ontario, this 10th day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
CHIPPEWAS OF KETTLE & STONY POINT FIRST NATION
Applicant
KA KWI ROK THA SHERRY SHAWKENCE
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Respondent, Ms. Ka Kwi Rok Sherry Shawkence ("Ms. Shawkence" or the "Complainant") was employed by the Applicant, the Kettle and Stony Point First Nation, ("KSP First Nation" or the "Employer"). This is an application for judicial review of the decision of Adjudicator Ian Hunter (the "Adjudicator") dated August 25, 2003, wherein the Applicant was found to have been unjustly dismissed.
Background
[2] The following are the most relevant background facts giving rise to the dispute that was heard by the Adjudicator.
[3] Ms. Shawkence was hired as a Special Constable by the KSP First Nation effective September 6, 1994. She was absent for significant periods of time during the ensuing 26 months, for health reasons and for a two-week honeymoon vacation to Jamaica.
[4] She was notified, by letter dated December 6, 1996, of her termination by the KSP First Nation, "because of abandonment of the position you have held".
[5] On December 10, 1996, Ms. Shawkence filed a complaint for unjust dismissal under the Canada Labour Code (the "Code") R.S., c. L-1. As required by s. 241 of the Code, by letter dated February 19, 1997, counsel (at that time) for the KSP First Nation set out the following reasons for the dismissal:
o Abandonment of her position.
o Frustration of the employment contract.
o Post-termination discovery of sick days and days off work not in conformance with policy.
Procedural History
[6] The Adjudicator was appointed September 12, 1997 to hear the complaint of Ms. Shawkence that she had been unjustly dismissed from her employment as a police constable by the KSP First Nation. His final decision, which is the subject of this judicial review, was dated August 25, 2003, or almost six years after his appointment. The case consumed 24 hearing days over a span of four years from the first date of hearing until final arguments. The process was fraught with problems, from changing counsel to delays attributable, at various times, to both parties to the dispute.
[7] During the process, the Adjudicator delivered three written Interim Decisions. The first of these decisions, dated December 20, 1998, is not significant to this application. In the second Interim Decision dated December 3, 1999, the Adjudicator held that the KSP First Nation was limited to justifying its decision to terminate Ms. Shawkence based on allegations of improprieties by her with respect to "sick leaves and days taken off work".
[8] In a third Interim Decision dated June 7, 2002, the Adjudicator ruled that the KSP First Nation could not call additional Reply witnesses -Michelle Vassen (who had previously testified) and Chief Tom Bressette - or submit 14 additional documents into the record.
[9] In his final decision, after a lengthy review of the evidence, the Adjudicator held that the KSP First Nation "failed to discharge its onus of proving, on a balance of probabilities that it had just cause to terminate Shawkence's employment. Shawkence was unjustly dismissed." The Adjudicator's conclusions and findings leading to the overall finding are described as the issues raised by this application are discussed.
Issues
[10] The Applicant raises six issues:
1. What is the appropriate standard of review?
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2. Was the Adjudicator required to consider the question of whether the Ontario Provincial Police ("OPP") was the true Employer, rather than the KSP First Nation?
3. Did the Adjudicator's refusal to admit certain evidence tendered at the reply stage of the proceedings deny the KSP First Nation a fair hearing, thereby breaching the rules of natural justice?
4. Was the Adjudicator's failure to draw an adverse inference regarding Ms. Shawkence's failure to testify a patently unreasonable error in law or otherwise constitute an excess of jurisdiction?
5. Was the Adjudicator's decision to limit the grounds of dismissal an error in law or otherwise constitute an excess of jurisdiction?
6. Was the Adjudicator's decision that Ms. Shawkence was unjustly dismissed patently unreasonable, due to errors in his findings that:
(a) Ms. Shawkence was not culpable in the falsification of time sheets;
(b) Ms. Shawkence did not improperly take time off; and
(c) Ms. Shawkence's absences were supported by medical documentation?
[11] Ms. Shawkence raised a preliminary matter related to the affidavit of Chief Tom Bressette filed as part of this judicial review application. The Chief's affidavit consisted of 151 paragraphs and over 400 pages of exhibits. Ms. Shawkence brought a motion to strike the entire affidavit. That motion was heard as part of the judicial review. While I might have struck many paragraphs in the affidavit on a number of grounds, I decline to do so. On a practical level, in light of my dismissal of this application, there is no need to respond to the motion.
Issue #1: Standard of Review
[12] There was no disagreement by the parties that decisions of the Adjudicator made pursuant to the Labour Code are among those to be given the highest degree of deference. With the presence of a strong privative clause in s. 243 of the Labour Code and the expertise of the adjudicators chosen to carry out this highly specialized, fact-driven work, courts have consistently held that the appropriate standard of review is one of patent unreasonableness for findings of fact. On this standard, I can only intervene if the decision, when read as a whole, is entirely unsupported by the evidence. With respect to issues of mixed fact and law, the Federal Court of Appeal in Mihalicz v. Royal Bank, [2000] F.C.J. No. 781, at para. 3, expressed the view that a mixed question of fact and law may not be reviewable at all, but that, if it is, the applicable standard of review "cannot be more exigent than reasonableness".
[13] In spite of this high standard, the court cannot ignore clear breaches of natural justice (Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, paras. 40-47 (referred to as "Larocque")).
[14] The KSP First Nation submits that, where the alleged error relates to the jurisdiction of the Adjudicator, the appropriate standard is correctness. I am not in complete agreement with this point of view; I believe that there may be situations where a determination of jurisdiction is based on a particular factual context and, in such case, the standard can be no higher than reasonableness simpliciter.
Issue #2: OPP as employer
[15] Throughout the hearing, consistent with all of the documentary evidence filed, both parties and the Adjudicator treated the KSP First Nation as the employer. On May 28, 2002, the KSP First Nation, through its new counsel, requested that the Adjudicator grant leave to consider the question of whether the First Nation was actually the Employer, or rather, whether the OPP was the true Employer. In an oral decision, on May 28, 2002, the Adjudicator refused to grant leave to the KSP First Nation to present evidence on this issue, evidently ruling that they were estopped from doing so. The KSP First Nation submits that the Adjudicator, once the issue was raised, was obligated to consider the boundaries of his jurisdiction (Norway House Indian Band v. Canada (Adjudicator,Labour Code) (1994), 75 F.T.R. 246 (referred to as "Norway House"). His failure to consider the boundaries of his jurisdiction was a reviewable error.
[16] It is important to note that the KSP First Nation does not argue before me that the Adjudicator was without jurisdiction to consider the complaint of Ms. Shawkence. Rather, they argue only that the Adjudicator erred by refusing to exercise his discretion to hear evidence and determine whether the OPP or the KSP First Nation was the rightful employer. Thus, we have a different situation than was before Justice Muldoon in Norway House. In that case, the jurisdictional issue of whether the Norway House First Nation was a "federal work, undertaking or business" as defined in the Code was first raised on the application for judicial review. Justice Muldoon held that the parties were not estopped from raising the issue at this stage in spite of not doing so during the adjudication, stating, at para. 8 that:
If the Adjudicator had no jurisdiction as the applicant now asserts, then he never had jurisdiction and that consent [previous implied consent of the parties to proceed on the basis that the Adjudicator had jurisdiction] would be immaterial . . . [emphasis added]
[17] Before the Court in that case, the question was fully argued and decided, with Justice Muldoon holding that the Indian Band was a "federal work, undertaking or business". As noted, in the case before me, the KSP First Nation does not assert that the Adjudicator was without jurisdiction.
[18] Although the KSP First Nation characterizes the decision of the Adjudicator as a failure to consider the boundaries of his jurisdiction, I do not agree. In my view, the decision of the Adjudicator was a decision that the KSP First Nation not be permitted to present evidence on an issue raised at the eleventh hour. Although the subject matter may have been jurisdiction, the question before the Adjudicator was one of the admissibility of additional documentary evidence.
[19] The record before me does not support the view of the KSP First Nation that the request to the Adjudicator was a fundamental jurisdictional question. Given that there is no transcript of the proceedings, it is somewhat unclear as to what actually occurred during the presentation of this request to the Adjudicator. I note that the file before me contains no written request from the KSP First Nation. No separate Interim Decision was written by the Adjudicator as was done on three earlier occasions. Additionally, the issue was never addressed in the Adjudicator's final decision. If this was to be such a determinative issue, surely it would have been put to the Adjudicator and dealt with him in a much more formal manner. From the absence of material dealing with this issue, I can reasonably infer that the request was one for the admission of evidence and not for a determination of jurisdiction.
[20] On the basis of this view of the matter, I would be loath to intervene in the Adjudicator's decision on the admission of this documentary evidence at the Reply stage. However, there are further circumstances in this case that tip the balance even more against the KSP First Nation. During the hearing, the production of documents was an issue on a number of occasions. The Adjudicator had made two earlier production orders which had been blatantly ignored. Given these circumstances, the Adjudicator's decision not to admit the documents at this stage of the hearing was not unreasonable.
[21] Even if I accept (which I do not) that the request to the Adjudicator was for him to determine whether the OPP and not the KSP First Nation was the Employer, I would not see the need to overturn the decision. This is because, in my view, there was insufficient evidence available to the Adjudicator to support a finding that the OPP was the Employer.
[22] A very simple starting point is the fact that the hiring of Ms. Shawkence was by the KSP First Nation and was done pursuant to a band resolution. In addition to being appointed as a "band constable", she was separately appointed as a First Nations Constable with the OPP, pursuant to
s. 54 of the Police Services Act, R.S.O., 1990, c.P. 15. In effect, she wore two police hats. After her dismissal by the KSP First Nation, a separate termination process was carried out by the OPP. By letter dated March 5, 1997, the Commissioner of the OPP advised that, "in the absence of your employment as a constable with a First Nations community, I can see no justification for your continued appointment as First Nations Constable." Pursuant to s. 54 of the Police Services Act, her appointment as a First Nations Constable was terminated effective March 10, 1997. Thus, while she may have been a First Nations Constable with the OPP, she was first and remained an employee of the KSP First Nation until her dismissal by the KSP First Nation.
[23] The KSP First Nation refers me to the Ontario First Nations Policing Agreement, 1991-1996, dated March 30, 1992. This is a multi-party policing agreement, among a number of First Nations, the federal Crown and the provincial Crown, that provides, inter alia, for the appointment of First Nations Constables, as defined in the agreement. Under the agreement, persons chosen by individual first nation communities, either by the relevant police governing authority or under procedures established by the relevant Council of an Indian Band, are appointed by the Commissioner of the OPP as First Nations Constables. The parties explicitly recognize that the agreement "does not alter or affect the division of constitutional authority, responsibility, jurisdiction or rights" of the parties. To ascribe to the position argued by the KSP First Nation, I would have to interpret this agreement to mean that the First Nation has, pursuant to the terms of the agreement, lost its ability to hire its own police constables. I can see nothing in that agreement that precludes a band from hiring its own police officers. Rather, the opposite intent appears to be woven into the terms of the agreement; persons chosen for policing positions by a local community are appointed as both police officers of the First Nation and "First Nation Constables" under the agreement.
[24] The KSP First Nation also refers to Canadian First Nations Police Association and Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (CFNPA), [2000] C.I.R.B. No. 64 (referred to as "Bay of Quinte") where the Canada Industrial Relations Board ("CIRB") was considering an application for certification of the Canadian First Nations Police Association. In that case, the CIRB opined that "from a practical perspective, . . . , the OPP rather than the Band must be seen as the employer". I would distinguish this decision on two significant grounds. First, the application before the CIRB was for certification of a bargaining unit, a matter which, in my view, is far different from consideration of unjust dismissal. For example, although the agreement does contemplate both community police officers and First Nations Constables, it contemplates only one pay regime, administered by the OPP. This may well support the conclusion of the CIRB that, "from a practical perspective" for labour certification, the OPP was the appropriate party. Second, the CIRB was considering the position of First Nations Constables, as that term is defined in the agreement referred to above, and not to officers who are first employed by the individual communities. The record in this case, which I assume sets out a common practice, differentiates clearly between the appointment of a police officer by a First Nation and the subsequent appointment by the Commissioner of the OPP of the same person as a First Nations Constable.
[25] Put simply, Ms. Shawkence was hired and fired by the KSP First Nation. Her redress for wrongful dismissal by the KSP First Nation is to that body. She may have been able to take a separate course of action in respect of her dismissal by the Commissioner of the OPP but that matter was not before the Adjudicator. Thus, even if he erred in not admitting fact and arguments related to the "true employer", the Adjudicator, in my view, had jurisdiction to hear the complaint.
Issue #3: Failure to admit Reply evidence
[26] On March 13, 2002, after 18 days of hearings and after completion of the KSP First Nation case in chief and substantial completion of Ms. Shawkence's case, counsel for the KSP First Nation was replaced. After completion of Ms. Shawkence's case, the KSP First Nation sought to call additional Reply witnesses - Ms. Michelle Vassen (who had previously testified) and Chief Tom Bressette - and to submit 14 additional documents into the record. Ms. Shawkence objected to this Reply evidence. In a decision dated June 7, 2002 (the "June 7, 2002 Interim Decision"), the Adjudicator ruled as follows:
_ With respect to the additional documents, he concluded that:
Admitting these documents, at this late stage and in flagrant disregard of two (2) prior production orders, would seriously prejudice the Complainant's case. Prior to May 28, 2002, the Complainant's counsel, had not seen these documents. Many relate to witnesses who have already testified. The prejudice is self-evident.
. . .
I am persuaded that allowing the introduction of these new documents in Reply would cause prejudice to the Complainant and that prejudice is so great that it could not be cured by an adjournment.
_ With respect to a further appearance by Ms. Vassen, he denied the request on the basis that, in her first appearance, "her evidence covered most, if not all, of the anticipated points she would address in Reply" and that "a reply witness cannot be called to buttress or restate, evidence given in chief".
_ Chief Bressette was allowed as a Reply witness, but his testimony was to be confined to the issue of alleged "condonation" by the Band Council for Ms. Shawkence's borrowing days off against future vacation entitlement.
[27] The KSP First Nation submits that the Adjudicator erred by refusing to allow all the proposed Reply testimony and documents.
[28] Section 242(2) of the Code that sets out the powers of Adjudicator provides that:
(2) An adjudicator to whom a complaint has been referred ¼. (b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint;
[29] The KSP First Nation points to the mandatory "shall" used in this provision and argues that, in disallowing this relevant additional testimony and evidence, the Adjudicator was in breach of his obligation to give full opportunity to the KSP First Nation to present its case and, thus, in breach of the rules of natural justice (Larocque, at para. 59). In essence, the KSP First Nation argues that, once it is determined that evidence is relevant, the mandatory language of s. 242(2) requires that it be admitted. This, in my view, is an overly expansive interpretation of the obligation of the Adjudicator.
[30] To begin with, Larocque does not go as far as the KSP First Nation believes. As stated by Chief Justice Lamer, at para. 46:
For my part, I am not prepared to say that rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
[31] The underlying question that must be addressed is whether, by refusing to admit this evidence, there was a breach of natural justice. Using the words of s. 242(2) of the Code, did the Adjudicator fail to give full opportunity to the KSP First Nation to present evidence? In my view, the answer to this question is "no".
[32] The request to admit further evidence and testimony was made May 28, 2002, some four years after the commencement of the hearings. At the time of the request, both the KSP First Nation and Ms. Shawkence had completed their cases. There is no reasonable explanation given as to why the evidence, whether relevant or not, could not have been produced earlier in the proceeding. Other than the existence of new counsel for the KSP First Nation, no other reasons appear to have been advanced for failure to produce the documents that the KSP First Nation wanted to put forward.
[33] Before me, I have the affidavit of Chief Tom Bressette where he attempts to provide additional reasons, mostly related to the actions of the former counsel. Such representations are not appropriate. They were not before the Adjudicator. In addition, absent direct representations from the former counsel or some more serious evidence of wrongdoing by her, I am not inclined to accept this as a reason for now overturning the Adjudicator's decision.
[34] Without anything further, I would be loath to intervene in the Adjudicator's decision on the admission of the documentary evidence at the Rely stage. However, there are further facts in this case that tip the balance even more against the KSP First Nation. As discussed earlier in these reasons, the production of documents was an issue on a number of occasions during the hearing. In view of these circumstances, the Adjudicator's decision not to admit the documents at this stage of the hearing was not unreasonable. And, given that the KSP First Nation had been given every opportunity to present this evidence earlier, there was, in my view, no breach of natural justice.
[35] I draw a similar conclusion with respect to the request to allow Chief Tom Bressette to testify for the first time and for a further appearance by Ms. Vassen. In the circumstances, the decision of the Adjudicator was not unreasonable. There has not been, in my view, a breach of natural justice.
[36] The KSP First Nation submits that the Adjudicator should have considered the statutory context, potential prejudice to the Applicant, the reasons for failure to comply and whether the exclusion of evidence was the only available remedy (Rogers Radio (CJMX-FM)and Communications, Energy and Paperworkers Union of Canada, [2003] C.I.R.B. No. 246, at para. 18). With respect to this argument, the reasons of the Adjudicator in the Interim Decision indicate that he did take all of these matters into account. How he weighed those factors is not a subject for review.
[37] Finally, I note that this court has recently addressed the issue, holding that the admission of reply evidence is a discretionary one (Vincent v. Waterhen Lake First Nation, [2004] FC 831, at para 66). In that case, the Court upheld a decision of an adjudicator denying a party's request to admit rebuttal evidence of a witness who had testified in chief.
Issue #4: Failure to draw adverse inference
[38] Ms. Shawkence did not testify at the hearing. As an obvious consequence, the KSP First Nation did not cross-examine her. The KSP First Nation submits that there were critical matters about which the Adjudicator came to "dubious and wrong conclusions" without the testimony of the complainant. The evidence, in their view, "cried out for the Complainant's testimony and the Employer's opportunity to cross-examine her". The KSP First Nation asserts that the Adjudicator erred in not drawing an adverse inference from this failure to testify.
[39] For this issue, the KSP First Nation relies on the words of Justice Muldoon in the case of Norway House, at paras. 53 and 61, where he states:
Now, unless summoned to testify on subpoena, there is nothing in law to compel the complainant to testify, but she must thereby face the consequences. They are adverse inferences by the Adjudicator. He drew no adverse inferences regarding the complainant, only regarding the employer who (Chief and Councillors) didtestify. . . . Since she declined to testify on the substantive issues, the Adjudicator ought to have drawn all those adverse inferences open to him, and that might well have produced the dismissal of her complaint. The Adjudicator's failure in that regard gives the appearance of bias.
Without having warned the complainant about her failure to testify, without having applied the consequences of the risks to her case, the Adjudicator apparently accepted the employer's loss of opportunity to cross-examine. The Adjudicator's failure to admonish, his failure to give any heed whatsoever to the legal concept of adverse inference in regard to the complainant's case, his indifference to the employer's loss of opportunity to cross-examine the complainant, . . . his apparent bias in drawing all, or almost all, adverse inferences against the employer, evince patently unreasonable conduct of the inquiry. [emphasis added]
[40] In my view, for at least two reasons, this argument must fail.
[41] First, the KSP First Nation acknowledges that they did not seek to subpoena Ms. Shawkence to testify as was possible pursuant to the provisions of the Code (Code, s. 242, s. 16). Although she was not prepared to testify voluntarily, there was nothing stopping the KSP First Nation, if cross-examination was considered to be so essential to their case, to seek to compel her to testify. Even if I were to accept that the law is as the KSP First Nation describes, in my view, a party cannot, after a negative decision, raise the non-appearance of the complainant as an issue unless they have done everything possible during the proceeding to cause the complainant to appear.
[42] Secondly, the KSP First Nation appears to interpret the decision in Norway House as placing a legal obligation on the Adjudicator to draw an adverse inference. I do not believe that this is a correct statement of the law. As stated in Sopinka & Lederman in The Law of Evidence in Civil Cases (Sopinka, J. & S.N. Lederman, The Law of Evidence in Civil Cases, (Toronto: Butterworths, 1974), at page 537):
Failure on the part of a defendant to testify or call a witness, once a prima facie case has been made out against the defendant, may be the subject of an adverse inference. While such failure will not, in itself, fill a gap in the case of the party who has the burden of proof, when sufficient evidence has been produced by the latter, so as to create a secondary burden on the opposite party, failure by such a party to testify or call on a witness strengthens the case against him.
[43] A number of factors to be considered, relevant to the case before me, can be drawn from this passage:
_ There is no obligation for a decision-maker to draw an adverse inference from a failure to testify;
_ An adverse inference should only be drawn where a prima facie case has been made out against the defendant;
_ Failure to testify cannot fill the gap in the case of a party who bears the burden of proof;
_ The decision-maker should look not only at whether the defendant has failed to testify but whether the defendant failed to call any witnesses.
[44] Considering all of these factors, I am not satisfied that there was any obligation on the Adjudicator in this case to draw an adverse inference. The decision demonstrates that the KSP First Nation did not make out a prima facie case or produce sufficient evidence to discharge its burden of proof. Only then would the drawing of an adverse inference from a failure to testify be appropriate. Further, even then, an adverse inference would not be appropriate in this case since Ms. Shawkence did produce a witness to speak to the issue of fundamental issues of "sick leaves and days taken off work". Miles Bressette testified on behalf of Ms. Shawkence and was cross-examined.
[45] Finally, I am not quite certain of exactly what adverse inferences the Adjudicator would have been obliged to make. Was he to shift the burden of proof? If this is the case, that secondary burden was already satisfied through the testimony of Ms. Shawkence's witness, Miles Bressette. Was the Adjudicator to assume that KSP First Nation was correct in all its assertions against Ms. Shawkence? The effect of such an adverse inference, in this case, would be to completely discharge the KSP First Nation of any obligation to prove its case, on a balance of probabilities.
[46] On the facts of this case, I am not satisfied that the Adjudicator's failure to draw an adverse inference from Ms. Shawkence's failure to testify was an error.
Issue #5: Limiting the scope of the grounds for dismissal
[47] In the second Interim Decision, dated December 3, 1999, the Adjudicator held that the KSP First Nation was limited to justifying its decision to terminate Ms. Shawkence based on allegations of improprieties by her with respect to "sick leaves and days taken off work". More specifically, the Adjudicator determined that evidence of the KSP First Nation was to be limited to that ground and not to the "general, more nebulous 'interaction with other officers and staff' and 'circumstances involving Constable Shawkence's work record' ".
[48] In his reasons, the Adjudicator held that falsification of Ms. Shawkence's notebook was "not a ground relied upon by the Respondent in their Section 241 letter; it is also beyond the scope of the Interim Decision dated December 3, 1999". The KSP First Nation submits that the Adjudicator erred by failing to consider whether Ms. Shawkence had falsified her official police notebook. This, they argue, was done in order to justify days off and, thus, fell within the grounds being considered. If there is any link between the issue before the Adjudicator and the complainant's police notebook, I cannot see it. Nor did the Adjudicator. There is no error.
Issue # 6: Alleged errors in findings
[49] Overall, the Adjudicator concluded that the KSP First Nation had failed to discharge its onus of proving, on a balance of probabilities, that it had just cause to terminated Ms. Shawkence's employment. The sole ground upon which the KSP First Nation based its case before the Adjudicator was impropriety by Ms. Shawkence with respect to "sick leaves and days taken off work". At the end of the hearings, the KSP First Nation failed to persuade the Adjudicator that such improprieties occurred.
[50] The KSP First Nation alleges that the Adjudicator made a number of findings of fact that cannot be supported by the evidence that was before him. In particular, three findings are highlighted:
_ Ms. Shawkence was not culpable in the falsification of time sheets;
_ Ms. Shawkence did not improperly take time off for her honeymoon; and
_ Ms. Shawkence's absences were supported by medical documentation.
[51] These findings of fact are reviewable only on the highest standard of review. Provided that there is evidence supporting these conclusions, this Court should not interfere.
(a) The falsification of time sheets
[52] The Adjudicator found, as a fact, that the KSP First Nation "has not proved falsification of time sheets". The KSP First Nation submits that Ms. Shawkence "deliberately filled out and signed false activity sheets which certified that she was working. She signed them - that is not in dispute. Prima facie, the Complainant was culpable. The finding that there was no evidence to support this conclusion is perverse."
[53] I do not agree. Having read the decision, it appears that there was evidence on the record that irregularities in the time sheets could have originated at other points in the chain. As noted by the Adjudicator, there was "general confusion covering sick leave benefits throughout the Band police". The Adjudicator found that:
If there were irregularities or discrepancies in the recording of Ms. Shawkence's sick leave or vacation days, I find as a fact that such discrepancies were the consequence of (a) general confusion within the Kettle and Stony Point Band about what the correct policies were, and (b) managerial incompetence. There was no evidence from Sergeant Prosser [a witness who had conducted an audit on the KSP First Nation police detachment] that would prove Ms. Shawkence's culpability in any such irregularities.
[54] On this point, there was evidence on the record that would lead to the Adjudicator's conclusion. He did not ignore the fact that the false time sheets were signed but concluded that, due to the "general confusion" and "managerial incompetence", no culpability was proven. There is no error.
(b) The "honeymoon" absence
[55] One of the key findings of the Adjudicator was that "the Employer failed to prove any wrongdoing on the part of Sherry Shawkence in respect of her "honeymoon" absence in December, 1995". Evidence on this issue was adduced by witnesses for both parties. The Adjudicator discounted the testimony of one KSP First Nation witness who was, in his view "considerably shaken in cross-examination on whether, perhaps, the Police Committee had approved Ms. Shawkence's honeymoon absence". On the other hand, he found that the evidence of Miles Bressette (witness for Ms. Shawkence) "was unshaken by cross-examination". With respect to the "honeymoon" incident:
Miles Bressette's evidence was that Shawkence's "honeymoon" absence was explicitly approved by him (as Police Chief and her Supervisor) and by the Band Police Committee.
[56] In reaching his decision, the Adjudicator considered the evidence of Chief Tom Bressette, on the limited issue of "condonation" by the Band Council and concluded that Chief Tom Bressette's evidence fell short of establishing that the Band Council was in ignorance of the actions of Miles Bressette and the Police Committee.
[57] The KSP First Nation argues that the Adjudicator failed to refer to or misapprehended evidence that, in their view, should have led to a contrary conclusion on the issue of the "honeymoon" absence; that the Adjudicator's conclusion on this issue "defies logic and common sense".
[58] Before me, the KSP First Nation relied on a number of documents attached to the affidavit of Chief Tom Bressette to demonstrate the alleged error in the Adjudicator's finding. However, this evidence was not before the Adjudicator and cannot be used to support their position before me. This evidence, as discussed under Issue #3, could have been placed before the Adjudicator and was not.
[59] It is clear from the decision, that the Adjudicator listened carefully to all of the testimony. He preferred the testimony of Miles Bressette who stated that the absence was approved. In addition, he felt that the opposing view from one of the KSP First Nation witnesses was "shaken in cross-examination". In his final view on this point, he does not state that Ms. Shawkence obtained approval for the absence but that "the Employer failed to prove any wrongdoing on the part of Sherry Shawkence in respect of her "honeymoon" absence in December, 1995". Given the doubt that was raised by the evidence of Miles Bressette, this conclusion that the Employer had failed to discharge its burden of proof on this point was not unreasonable.
(c) Medical documentation to support absences
[60] The Adjudicator found that "Ms. Shawkence provided all necessary and required medical documentation for her frequent absences." The KSP First Nation alleges errors in this conclusion, pointing out, for example, that a three-week period was not covered by any certificate.
[61] The failure of the Adjudicator to refer to the absence of a certificate for a three-week period (or any other incident) is not, in my view, an error. Of particular note is the Adjudicator's discussion of the record keeping of the KSP First Nation. He concludes that "no reliance whatsoever can be placed on the administration and/or record-keeping of the [KSP First Nation] Police Department". Given this conclusion, it follows that the presence or absence of a medical certificate is irrelevant. The only testimony on this point that the Adjudicator considered to be reliable was that of Miles Bressette who swore that "Ms. Shawkence provided an acceptable medical certificate for each and all absences exceeding three (3) days."
[62] With respect to each of these three allegedly wrong findings, the KSP First Nation points to evidence that could have led to different findings. However, that is not the test for review of the Adjudicator's decision. Indeed, it would be improper for me to review the evidence for the purpose of coming to a different conclusion. Having reviewed the record and the Adjudicator's decision, I am satisfied that there is evidence to support the reasons and, in particular, the three findings referred to above. There is no reviewable error.
Conclusion
[63] In conclusion, the application for judicial review will be dismissed.
[64] I asked the parties to provide me with their written submissions on costs. Ms. Shawkence requests that, if successful, costs of the judicial review should be assessed at column IV of Tariff B of the Federal Court Rules. In addition, Ms. Shawkence seeks a separate order of costs with respect to the motion to strike the affidavit of Chief Tom Bressette, to be assessed on a solicitor and client basis. In Ms. Shawkence's view, costs on this basis are warranted due to the fact that the affidavit contained scandalous and irrelevant information and numerous paragraphs which sole purpose appeared to be to present argument to contradict the findings of fact of the Adjudicator.
[65] The KSP First Nation submits that the costs be awarded in accordance with column III of Tariff B.
[66] In exercising my discretion pursuant to Rule 400, I have considered the factors set out in that Rule. In particular, I note the following:
1. Ms. Shawkence is the successful party in this application.
2. An award of costs on a solicitor and client basis is only appropriate where there has been some egregious abuse of the process. While the affidavit of Chief Tom Bressette may have included improper statements, in my view, its filing does not evidence reprehensible, scandalous or outrageous conduct on the part of the KSP First Nation or their counsel.
3. Although no specific ruling was necessary on this case with respect to the motion to strike and while costs on a solicitor and client basis are not appropriate, costs in respect of the motion should be allowed as part of the assessment.
4. There were seven issues raised by the KSP First Nation requiring significant work by both parties. As can be seen from these reasons, certain of these issues required substantial legal analysis and thought. In my view, this justifies a modest departure from the usual award at column III of Tariff B to an award at the bottom of column IV of Tariff B.
[67] In conclusion, costs throughout should follow the event and be assessed against the KSP First Nation in accordance with the lower end of column IV of Tariff B.
ORDER
This court orders that:
1. The application is dismissed; and,
2. The Respondent, Ms. Shawkence, shall have her costs throughout assessed at the low end of column IV of Tariff B by an assessment officer.
"Judith A. Snider"
______________________________
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1822-03
STYLE OF CAUSE: CHIPPEWAS OF KETTLE et al v.
KA KWI ROK THA SHERRY SHAWKENCE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 16, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: June 10, 2005
Carol Godby FOR APPLICANT
Stuart R. Mackay FOR RESPONDENT
SOLICITORS OF RECORD:
Harrison Pensa FOR APPLICANT
London, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada