BETWEEN:
and
Heard at Ottawa, Ontario, on May 16, 2006.
Judgment delivered from the Bench at Ottawa, Ontario, on May 16, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Docket: A-484-04
Citation: 2006 FCA 181
CORAM: DÉCARY J.A.
LINDENJ.A.
SEXTON J.A.
BETWEEN:
ERIC SCHEUNEMAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on May 16, 2006)
[1] With respect to the complaint against the Treasury Board Policy, Counsel for the Crown has agreed, based on our decision in Sketchley v. Canada (Attorney General), [2005] F.C.J. 2056, that this aspect of the appeal must be allowed and the matter be referred back to the Commission to be re-determined by a different Investigator, who may rely on the evidence already before the Board and such other relevant evidence as the parties may choose to offer.
[2] With respect to the complaint against the employer, Natural Resources Canada, involving specific factual matters, despite the written representations of the appellant who was excused from appearing in person, we are persuaded that the appeal must be dismissed in that the BFOR aspect of the appeal was implicitly decided by the Commission and affirmed by the Motions Judge, as contemplated by paragraph 95 of Sketchley, supra.
[3] The decision of the Board dated December 13, 2001 relied on the Investigator's Report dated August 19, 2001, which contained the following passage:
The purpose of leave without pay is to permit employees to take a limited period of time off work while maintaining continuity of their employment. It provides an "option bridge in the employment gap." Regardless of the kind of leave taken, there is a requirement that the leave be time limited, that is, not for an indefinite period of time. This is because the notion of "leave" is premised on the assumption that the employee will return to work. It is inconsistent with the purpose of unpaid leave to provide continuity of employment to employees who have no reasonable prospects of returning to the workplace. Leave without pay is not intended to provide an ongoing employment relationship with all employees of the Public Service, only those who provide proof that they will able to return to work after a specified or reasonable period of time.
[4] Our conclusion is consistent with the remarkably similar "Boisvert" decision in Quebec under the Human Rights Code in that province, which mirrors the Federal Code. (Syndicat national des employés municipaux de Pointe-Claire v. Pointe-Claire (Ville) "Boisvert", [2000] R.J.D.T. 512 (Que.S.C.); leave to appeal refused (unreported, April 28, 2000); leave to appeal to S.C.C. refused [2000] C.S.C.R. No. 313.)
[5] Since success is divided, there should be no costs awarded.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-484-04
Appeal from an Order of Simpson, J. dated August 20, 2004 in files T-90-02 and T-91-02
STYLE OF CAUSE: ERIC SCHEUNEMAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR JUDGMENT OF THE COURT BY: (DÉCARY, LINDEN & SEXTON JJ.A.)
DELIVERED FROM THE BENCH BY: LINDEN J.A.
APPEARANCES:
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FOR THE APPELLANT
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Ramona Rothschild |
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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