Dockets: T-956-98
Neutral citation: 2001 FCT 893
BETWEEN:
Applicant
- and-
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Ed Trevena (the "Applicant") seeks judicial review of two decisions. In proceeding T-956-98, he seeks review of the decision of the Public Service Staff Relations Board (the "Board") rendered on April 6, 1998 by Mr. Joseph Potter, Adjudicator, following adjudication of a grievance pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985 c. P-35, as amended (the "PSSRA"). The effect of the decision was the imposition of a twelve-day suspension.
[2] The second application, in proceeding T-862-99, relates to the decision of Adjudicator Ken Norman, member of the Board (the "Adjudicator"), dated November 25, 1998. The reference to adjudication, under section 92(1)(b)(ii) of the PSSRA, arose from the Respondent's termination of the Applicant's employment pursuant to section 11(2)(f) and 11(4) of the Financial Administration Act, R.S.C. 1985, c. F-11, as amended (the "FAA").
FACTS
[3] The Applicant was employed with the Tax Services Branch of Revenue Canada, in Regina, Saskatchewan, as a collection officer for a period of 21 years. Prior to the two matters before this Court, the Applicant had no history of discipline during his employment with Revenue Canada.
[4] On July 14, 1995, the Applicant met to discuss his work performance with his supervisor, Mr. Andrei Fedunyk. Mr. Fedunyk claims that after he made some critical comments about the Applicant's work performance, the Applicant said that the evaluation was unacceptable and that "dirt could be found" on Mr. Fedunyk. The Applicant denied making such a comment.
[5] In late June/early July, Mr. Fedunyk was offered early retirement and accepted the offer. On August 10, 1995, Mr. David Marshall, Assistant Director, Revenue Collections, Regina Tax Office, received a telephone call from Mr. Fedunyk. Mr. Fedunyk alleged that the Applicant had called his ex-wife and divulged confidential information concerning his early retirement package. Mr. Fedunyk and his ex-wife were in the process of finalizing a divorce settlement.
[6] Mr. Marshall initiated an investigation into the matter. The Departmental records revealed that, on July 20, 1995, three non-business related long-distance calls were made from the Applicant's workstation.
[7] The first call was to a company called Avon in Montreal. The Applicant initially denied having made the call to the investigator, but ultimately acknowledged having done so at the hearing.[1]
[8] The second call was to Ms. Glenda Patterson, Mr. Fedunyk's ex-wife, in Edmonton. Ms. Patterson testified that the caller, who had identified himself as "Ed", advised that Mr. Fedunyk was "going to receive between $60,000 and $70,000 in a buy-out package with the government" and suggested that she inform her lawyer of this fact. She further testified that the caller stated that "Mr. Fedunyk was jerking him around and should not be allowed to get away with all this money". The caller advised that he wanted to speak to her divorce lawyer and she provided him with the phone number. The Applicant denied having made this call to Ms. Patterson.
[9] The third call was to Ms. Patterson's lawyer in Edmonton. Ms. Susan Shedden, legal secretary for the law firm Goldsman & Ritzen, testified that she received an anonymous call from a male who wished to provide some information on Ms. Patterson's divorce. Ms. Shedden wrote a memorandum to the lawyer handling the divorce specifying the contents of the telephone call. The Applicant denied having made this call to Ms. Shedden.
[10] In his investigation, Mr. Marshall also considered the office layout. In concluding that the Applicant made the phone calls, he took into consideration that there would have been a high number of individuals in close proximity to the Applicant's workstation, and if another person had made the calls, he or she would have been noticed by other staff members.
[11] On or about November 9, 1995, the Applicant learned that he was to receive a twenty day suspension for reasons set out in the letter of suspension from Mr. Marshall. The relevant parts of the letter read as follows:
I have completed an investigation of a complaint against you from the public and have concluded that you made telephone calls to Ms. Glenda Patterson and her solicitor's office (Goldman & Ritzen) in July this year.
These calls were made with malice towards your former supervisor, Mr. Andrei Fedunyk, and for your own personal interest or gain. Your conduct has served to discredit our department in the eyes of the complainants and Ms. Patterson's solicitor.
The information you disclosed concerning Mr. Fedunyk's "retirement package" was confidential information obtained through your employment here and is a violation of the "Oath of Office and Secrecy and the Standards of Conduct" you had made with our department....
For these reasons you are immediately suspended from duty and such suspension will be for a period of twenty (20) working days. During this time period you are not to return to the workplace. You will return to work on December 8/95.
Your denial of making these telephone calls and your absence of remorse have been taken into consideration in determining the severity of the discipline...
This complaint was received in confidence and you are advised not to discuss this matter or the related disciplinary action with anyone other than your union representative or management personnel involved in this matter.
Failure to adhere to the above instructions could lead to further and more severe disciplinary action, up to and including termination of employment.[2]
[12] The Applicant filed a grievance with respect to the twenty day suspension on December 5, 1995. On February 23 and 24, 1998, the Board held a hearing of the grievance.
[13] In a written decision dated April 6, 1998, Mr. Joseph Potter, the Adjudicator appointed by the Board, found on the balance of probabilities that the Applicant made the series of phone calls which resulted in the suspension in issue. Mr. Potter concluded that while there was insufficient evidence to find that the information released in these phone calls was confidential in nature, it was the inappropriateness of the calls which was most significant.
[14] He found that the Applicant "used office equipment for purposes other than the performance of its duties, and, more specifically, with some degree of malice towards his former supervisor". In determining the appropriate penalty, Mr. Potter made specific mention of the Applicant's nineteen year discipline-free employment history and reduced the penalty to a twelve day suspension.
[15] In the meantime, on May 1, 1997, Mr. Marshall, Assistant Director of Revenue Collections in the Regina Office received a telephone call from Mr. Mark Catterall, a tax payer. Mr. Catterall indicated to Mr. Marshall that he had received a letter by mail, advising him that his name and account information had been released to the general public. This letter additionally requested that Mr. Catterall sign an attached waiver form permitting the Public Service Alliance of Canada ("PSAC") to make use of such personal information at an impending grievance meeting. The letter further indicated that the recipient could contact Blaine Pilatzke of PSAC for further information. The unsigned letter read, in part:
In attempts to resolve a grievance issue for a Collection Officer employed by Revenue Canada your taxpayer information was used by management to support their allegations against that officer and subsequently communicated this information to the general public.
We feel the information that you supplied to Revenue Canada to administer the Income Tax Act was used in contravention of Section 239(2.3) and 241 of that Act.[3]
[16] The grievance in question was against a letter of reprimand authored by his team leader, Betty Duff, on May 22, 1996. Management conceded this grievance and the letter was removed from the Applicant's file. The Applicant was dissatisfied with this remedy and believed that he was being singled out for harassment.
[17] The Applicant claimed that confidential taxpayer information was being used to discipline him, and that taxpayers' information had been released to union representatives.
[18] Mr. Marshall held a meeting with the Applicant on May 2, 1997, for the purpose of confronting him in respect of the incriminating letter and waiver. The Applicant attended the meeting with Mr. Will Leach, a union representative of the Union of Tax Employees. At this meeting, the Applicant neither admitted nor denied having sent out the letter. On May 8, 1997, after a series of conversations during which the Applicant would not confirm that he sent out the letter, Mr. Marshall concluded that the Applicant was not going to provide an answer to this question.
[19] On June 4, 1997 Mr. Marshall sent a letter to the Applicant indicating that in the absence of his cooperation and based on the information at hand, it was concluded that the Applicant was responsible for the completion and distribution of the letters and waivers. The letter further indicated that management would review the matter and determine what action, if any, would be taken.[4]
[20] Mr. Marshall provided his superior, Mr. Kellet, with a chronology of the events discovered during his investigation surrounding the distribution of the letters and waivers. Mr. Kellet did not consider the Applicant's distribution of the letters and waivers to taxpayers to be an isolated act of misconduct. Rather, he viewed these actions, including the phone calls to Mr. Fedunyk's ex-wife, as forming a pattern of inappropriate behaviour.
[21] On June 6, 1997, the Applicant was dismissed from his employment. The grounds for the dismissal are set out in a letter signed by Mr. Al Kellet, the Director of the Regina Tax Services Office:
On June 4, 1997, you were advised of management's determination with respect to complaints recently received from two taxpayers/clients. As you are already aware, these complaints were related to an anonymous letter which each taxpayer/client had received, and which had raised serious concerns with regard to the confidentiality of their own tax information and the integrity of the departmental tax information system.
Management's letter of June 4, 1997 informed you of its determination that, based on a balance of probability, you were responsible for the formulation and dissemination to the taxpayers/clients of the above-noted anonymous letter. You were also informed that this determination was based on the information available to the Department at that time, and that it took into account your lack of cooperation with management's efforts to determine the circumstances surrounding the origin and distribution of the anonymous letter.
Your actions, as noted above, are unacceptable. They have given rise to serious concerns in the minds of at least two taxpayers/clients with regards to the confidentiality of their tax information and the integrity of Revenue Canada's tax information system, thereby causing harm to the reputation of the Department.
As such, your actions and personal conduct relative to the anonymous letter constitute significant misconduct which is incompatible with your involvement in the ongoing operations of the Department. Accordingly, I have decided to terminate your employment with Revenue Canada, for cause, effective end of business day, June 6th, 1997. This decision is taken under the authority sub-delegated to me under section 12 of the Financial Administration Act and pursuant to paragraph 11(2) of the same Act. In reaching this decision, I have taken into account your record of discipline which includes a recent 20 day suspension for similar serious misconduct that was also damaging to the reputation of the Department....[5]
[22] The decision of the Adjudicator dealt with whether the Respondent had just cause for terminating the Applicant's employment. The Adjudicator made a finding of fact that the unsigned letter was sent out by the Applicant, and that this activity was admitted by the Applicant during the course of his evidence before the Adjudicator. After hearing the evidence and arguments, the Adjudicator concluded that the Respondent had "just cause" for terminating the employment of the Applicant.[6]
FIRST APPLICATION
i) Applicant's Submissions
[23] The first application brought by the Applicant relates to the decision of the Board to impose discipline for having made the telephone calls to Ms. Patterson and her lawyer. The Applicant argues that his hearing before the Board was unfair and that the Adjudicator breached the rules of natural justice by requiring him to rebut the assumption that he made the calls. He argues that the onus was on the Respondent to prove that he had made the telephone calls, and that the totality of the evidence suggests that any employee working in the same office could have made the calls.
ii) Respondent's Submissions
[24] The Respondent submits that Adjudicator Potter properly directed his mind to the issue of whether the Respondent had established, on the balance of probabilities, that the Applicant made the phone calls and whether he acted inappropriately in doing so. Mr. Potter acknowledged that a finding on this issue would, "to a large extent, turn on the investigation and its findings on the one hand, and the conflicting evidence put forth by the Grievor on the other".[7] He further acknowledged that to resolve this issue would necessarily involve the assessment of the credibility of the witnesses in accordance with the principles expressed in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357.[8]
[25] The Respondent argues that in summarizing and weighing the evidence before him, Mr. Potter found "that the probability that someone other than the Grievor made the calls from his workstation to be negligible". Moreover, the Board noted that when pressed, the caller identified himself as "Ed" to Ms. Patterson, and that "it would be virtually impossible for someone to be at another desk, using another phone, for an extended conversation without being observed."[9]
[26] The Respondent relies on Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (C.A.) and submits that the decision should not be disturbed unless it can be shown to be perverse or capricious. The Respondent argues that the decision in question is rational and supportable by the evidence, and should stand.
SECOND APPLICATION
i) Applicant's Submissions
[27] The second application seeks judicial review of the decision to terminate the Applicant's employment. The Applicant admits to sending the letters and waivers but argues that this is not an action which could subject him to discipline. He argues that it is beyond dispute that 39 pages of confidential taxpayer information were delivered to Blaine Pilatzke, who was not an employee of Revenue Canada, and the information did not relate to the administration or enforcement of the Income Tax Act, R.S.C. 1985, c. I, as amended (the "ITA"). Section 239(2.3) of the ITA specifically makes it an offence to communicate an individual's social insurance number without the consent of that individual taxpayer.
[28] The Applicant argues that in order to properly contest his disciplinary suspension, he needed to use the information which had been provided to Mr. Pilatzke, and he could do so only with the consent of the individual taxpayers. Therefore, the letter was justified. He argues that he was simply following the procedure which is specifically set out in the ITA in order to obtain necessary consents for him to defend issues which had not yet been resolved. Rather than being an issue of conduct subjecting the Applicant to discipline, the issue becomes whether he was following the requirements of the ITA.
[29] The Applicant further submits that even if there were a basis to impose some form of discipline or penalty, the penalty of dismissal was not appropriate in the circumstances given the following factors:
(i) That the grievance which caused the Applicant to contact the taxpayers was in existence;
(ii) The employer, at the highest level, had been advised that taxpayers would be contacted and had not objected to that contact;
(iii) When the Applicant, through legal counsel, had requested information on precisely what offence he was being investigated for, the inquiries were not answered;
(iv) At the adjudication, the Applicant readily admitted that he had sent the letter.
(v) The fact that the Applicant was, during this period, on sick leave.
[30] The Applicant further submits that the Adjudicator acted beyond his jurisdiction in finding that it was appropriate to discipline him. The jurisdiction of an Adjudicator is dealt with in subsection 18.1(4)(a) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. He argues that when considering this jurisdiction, it is important to consider the reasons or basis upon which the discipline had been imposed.
[31] According to the letter of termination dated June 6, 1997, the reasons for imposing discipline were the "complaints" received from two taxpayers about the letters sent out by the Applicant. The second reason for the imposition of the discipline was for "causing harm to the Department". However, the Applicant argued that there was no evidence in support of either of these "reasons" before the Adjudicator. The Applicant says that the evidence before the Adjudicator did not establish that two complaints had been filed but that there were "taxpayer concerns". As for the second reason, the Applicant says that there was no evidence showing that harm had occurred to the Department.
[32] According to the Applicant, in his decision the Adjudicator appears to have disregarded the basis upon which discipline was imposed and to have substituted an entirely different basis. While the Applicant had been dismissed for causing harm to the Department, the Adjudicator substituted, as a basis for discipline, "his...own judgment as to what a fair minded, well informed member might think about the effect of the anonymous letter".
[33] The Applicant also submits that the Adjudicator breached the principles of natural justice by referring to a legal opinion that was not tendered into evidence.
(ii) Respondent's Submissions
[34] The Respondent submits that the Adjudicator was correct in concluding that the Applicant had engaged in misconduct. The Applicant admitted sending the unsigned letter, did not provide a reasonable excuse for including the provocative and unnecessary statement "to the general public", and knew this information would be kept confidential.
[35] In determining the reasonableness of the termination, the Respondent argues that it was appropriate for the Adjudicator to consider that the Applicant had a lengthy suspension on his file for similar misconduct. Most important is the fact that the Applicant showed no remorse for his conduct, and was not forthright in admitting his involvement in sending out the letter. The Respondent argues that the lack of remorse and candour goes to the Applicant's rehabilitative potential as well as the bond of trust between the Applicant and the employer.
[36] The Respondent denies that the Adjudicator relied upon a legal opinion not tendered into evidence. According to the Respondent, the Adjudicator, in his summary of the evidence, indicated that reference was made during testimony to a legal opinion that concluded a union representative at a disciplinary hearing is not a member of the general public. The Respondent argues that it is clear that the Adjudicator did not refer to this opinion in his reasons for judgment, but simply referred to the fact that its existence came up during the course of the testimony. The Respondent submits that it is clear from the Adjudicator's reasons as a whole that this was not an important factor. The Adjudicator focussed on the necessity of including the phrase "to the general public" in the letter, and not the meaning of those words.
[37] Finally, the Respondent denies the Applicant's assertion that the Department recognized that an error had been committed in releasing taxpayer information without consent of the affected taxpayers. Instead, the Department said that the release of the information to Blaine Pilatkze was covered by section 241(4) of the ITA and was not in error.
ISSUES
[38] Two issues arise from the within applications:
1. Did Adjudicator Potter commit a reviewable error in making his decision upon the Applicant's grievance of his suspension?
2. Did Adjudicator Norman commit a reviewable error in finding that the Respondent had "just cause" to terminate the Applicant's employment?
ANALYSIS
[39] Adjudicators have jurisdiction to hear grievances involving disciplinary action resulting in termination of employment made pursuant to section 11(2)(b) of the FAA and referred to adjudication pursuant to section 92(1)(b)(ii) of the PSSRA. This Court may grant relief pursuant to section 18.1(4) of the Federal Court Act, supra. That section provides as follows:
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments don't il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
|
[40] The wording of this section suggests that a high degree of deference should be shown to an adjudicator's findings of fact. In McCormick v. Canada (Attorney General) [1998], 161 F.T.R. 82, Justice Muldoon of this Court considered the appropriate standard of review applicable to the decision of an adjudicator appointed pursuant to section 93 of the PSSRA. At paragraph 12 he said as follows:
In determining the degree of deference which should be accorded to the adjudicator's decision, reference must be made to four factors: the specialized nature of the tribunal, whether a statutory right of appeal exists, the nature of the issue to be decided by the adjudicator, and the existence of a privative clause: Canada (Attorney General) v. Wiseman (1995), 95 F.T.R. 200 (T.D.), which held that the decision of the adjudicator, who was appointed pursuant to the PSSR Act, should be given "considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator's jurisdiction and special expertise." Only decisions not supported by the evidence are subject to judicial intervention.
[41] Applying this test to the within proceedings, the Applicant must show that the decisions under review are patently unreasonable and not merely wrong in the eyes of the Court.
[42] The Applicant's submissions, in his first application, turn mainly on the factual findings made by Adjudicator Potter in relation to the telephone calls. He argues that the Adjudicator erred in concluding that he had made the telephone calls, that an impossible burden had been placed on him to rebut the prime facie case that he had made the calls, and that the Adjudicator erred in concluding that nothing of significance turned on whether the information provided during those calls was confidential.
[43] In my opinion, the Applicant has not succeeded in demonstrating that the Adjudicator erred in concluding that the Applicant had made the telephone calls in issue. The Adjudicator apparently assessed the evidence before him and concluded that it was unlikely that the calls were originated by another employee, having regard to the office lay-out and the unlikelihood that another person could have used the Applicant's telephone without notice.
[44] As well, the Adjudicator clearly turned his mind to the credibility of Mr. Fedunyk and Ms. Patterson, as appears from the reference in his decision to the well-known authority on assessment of credibility, that is Faryha v. Chorny, supra.
[45] In my opinion, the Applicant has failed to show that Adjudicator Potter made a patently unreasonable finding of fact about the maker of the telephone calls in issue.
[46] This finding necessarily impacts on the second argument raised by the Applicant, that is whether he was unfairly required to rebut the prime facie case that he had made the telephone calls. There is simply no evidence to suggest that anyone else made the telephone calls and consequently, no basis to overturn the Adjudicator's finding in this regard.
[47] Finally, on the issue of whether the calls divulged confidential information, I refer to the comments of the Adjudicator as follows:
I was not provided with sufficient evidence to find that the information released was confidential in nature. However, I do not find that anything of significance turns on the issue of whether or not the information was confidential. What I find significant in this case is the appropriateness of the calls made by the grievor.[10]
[48] These comments clearly state that the issue of the release of confidential information was not determinative of the matter for the Adjudicator. In the letter of November 9, 1995 from Mr. Marshall to the Applicant, the following reasons were given for his suspension: that the calls were made with malice against Mr. Fedunyk, that confidential information was disclosed, and that the use of a Departmental telephone was inappropriate use of government equipment.
[49] It is clear that the Adjudicator focused on the propriety of the Applicant's actions and concluded that they were not appropriate. I see no basis for interference with this conclusion and the application for judicial review of his decision is dismissed.
[50] Turning now to the decision of Adjudicator Norman, the issue is whether he erred
in concluding that the Respondent had just cause to terminate the employment of the Applicant. The determination in this regard turns on the propriety of the actions of the Applicant in sending the letter and waiver to the taxpayers.
[51] The Applicant claims that the contents of the letter were true and he was merely following the requirements of the ITA when he sent it to the taxpayers, seeking their consent to rely on certain information. The Respondent's position is that the letter was unnecessary and inflammatory, and served only to damage the reputation of the Department.
[52] In order to determine if the Adjudicator reasonably concluded that the Respondent had just cause to terminate the employment of the Applicant, it is necessary to consider whether the act of mailing the letter was unnecessary and constituted misconduct by the Applicant.
[53] Section 239(2.3) of the ITA is relevant to consideration of this issue. That section provides as follows:
| (2.3) Every person to whom the Social Insurance Number of an individual or to whom the business number of a taxpayer or partnership has been provided under this Act or a regulation, and every officer, employee and agent of such a person, who without written consent of the individual, taxpayer or partnership, as the case may be, knowingly uses, communicates or allows to be communicated the number (otherwise than as required or authorized by law, in the course of duties in connection with the administration or enforcement of this Act or for a purpose for which it was provided by the individual, taxpayer or partnership, as the case may be) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months, or to both. |
(2.3) Toute personne à qui le numéro d'assurance sociale d'un particulier ou le numéro d'entreprise d'un contribuable ou d'une société de personnes est fourni en application de la présente loi ou d'une disposition réglementaire, ainsi que tout cadre, employé ou mandataire d'une telle personne, qui, sciemment, utilise le numéro, le communique ou permet qu'il soit communiqué (autrement que conformément à la loi ou à l'autorisation donnée par le particulier, le contribuable ou la société de personnes, selon le cas, ou autrement que dans le cadre de fonctions liées à l'application ou à l'exécution de la présente loi) sans le consentement du particulier, du contribuable ou de la société de personnes, selon le cas, commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de 5 000 $ et un emprisonnement maximal de 12 mois, ou l'une de ces peines. |
|
[54] It is clear that if the Applicant were to use social insurance numbers of taxpayers in pursuit of his grievance, then consent of the taxpayers would be required. The Applicant claimed that he needed the consent of the taxpayers so that he could disclose the information to his lawyer. However, this purpose is not clear from the letter which provides as follows:
In attempts to resolve a grievance issue for a Collection Officer employed by Revenue Canada your taxpayer information was used by management to support their allegations against that officer and subsequently communicated this information to the general public. (Emphasis added.)
[55] The words "general public" suggest that the information in question would receive broader distribution than simply to the Applicant's lawyer. The letter was sent anonymously and without details as to the manner in which the requested information would be used. In my opinion, the Adjudicator did not err when he concluded that the Applicant had engaged in misconduct when he sent out the letter.
[56] It is important to note that when assessing the reasonableness of the Adjudicator's decisions all of the surrounding circumstances should be taken into account. In his decision, Adjudicator Norman noted that the Applicant's action in mailing the letter resulted in an irreparable breach of trust in the employment relationship and that dismissal was the appropriate disciplinary response. He said as follows:
So, I conclude that, while a lengthy suspension for breaching confidence, which damaged Revenue Canada's reputation, was still on his file Ed Trevena chose to engage in further such action. He has shown no remorse for either act at any point in time. And, during the course of the investigation into this matter he made no admission. I have been given no reason to believe that an order of reinstatement would produce a fresh start for Ed Trevena and Revenue Canada. The bond of confidence between employer and employee has been permanently broken. Ed Trevena's long service cannot overcome all of this. Nor does it alone warrant a compensatory award in lieu of reinstatement.
[57] In my opinion, the Applicant has failed to show that Adjudicator Norman committed any reviewable error of law in reaching his decision. This application for judicial review is also dismissed .
[58] These reasons will be filed in T-956-98 and placed on T-862-99 and have the same force and effect as if it were filed.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
August 15, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKETS: T-956-98 & T-862-99
STYLE OF CAUSE: ED TREVENA
Applicant
- and-
ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: THURSDAY, OCTOBER 19, 2000
PLACE OF HEARING: REGINA, SASKATCHEWAN
REASONS FOR ORDER BY: HENEGHAN J.
DATED: WEDNESDAY, AUGUST 15, 2001
APPEARANCES: Mr. Tom J. Waller, Q.C.
For the Applicant
Mr. Richard E. Fader
For the Respondent
SOLICITORS OF RECORD: OLIVE, WALLER, ZINKHAN & WALLER
Barristers & Solicitors
2255-13th Avenue
Regina, Saskatchewan
S4P 0V6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010815
Dockets: T-956-98
T-862-99
BETWEEN:
ED TREVENA
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
Date: 20010815
Dockets: T-956-98
T-862-99
Toronto, Ontario, Wednesday the 15th day of August, 2001.
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ED TREVENA
Applicant
- and-
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The applications for judicial review are dismissed.
"E. Heneghan"
J.F.C.C.
[1]Decision of the Adjudicator, page 7.
[2] Applicant's Application Record, pages 26-27
[3] Applicant's Application Record, page 61
[4]Affidavit of Paulene Bourgault, page 147, Applicant's Record, Volume 1, Tab D-2.
[5]Letter tendered as Exhibit E-31, Applicant's Record, Volume 1, p 103.
[6]Decision of Ken Norman, Board Member, dated November 25, 1998, page 9, Applicant's Record, Volume 1, Tab B.
[7]Decision of Joseph Potter, Board Member, dated April 6, 1998, page 14, Respondent's Record, Tab A.
[8]Ibid, page 16.
[9]Ibid, page 15.
[10] Decision of Joseph Potter, Board Member, dated April 6, 1998, page 13, Respondent's Record, Tab A.