[2000] 2 F.C. 365
T-2107-98
Eric Scheuneman (Applicant)
v.
Attorney General of Canada (Respondent)
Indexed as: Scheuneman v. Canada (Attorney General) (T.D.)
Trial Division, Cullen J.—Ottawa, October 18, 21 and November 15, 1999.
Administrative law — Judicial review — Certiorari — Reasonable apprehension of bias — Standard of review — Procedural fairness — Judicial review of P.S.S.R.B. Adjudicator’s denial of applicant’s grievance of termination — After Minister’s arguments, applicant presenting 349-page submission including amendments claiming additional relief — Adjudicator accepting all exhibits adduced by Minister, including letter written by applicant, CHRC complaint form — Attempting to continue hearings after noon until advised hearings scheduled to last only mornings because of applicant’s disability (chronic fatigue syndrome) — Reasons addressing some, but not all of issues raised by applicant during hearing — Describing $10 million damages claim as “contradiction”, “ridiculous abuse of grievance process” — Rejected applicant’s proposed amendments — (1) Viewed realistically, practically, informed person would not conclude reasonable apprehension Adjudicator biased based on deference to Minister’s counsel, comments concerning applicant’s efforts to increase relief sought — As master of own procedure, within Adjudicator’s discretion to admit CHRC form, weigh relevancy — Admission per se not establishing bias — No additional cogent evidence inferring bias — (2)(a) Balancing factors set out in Baker v. Canada (Minister of Citizenship and Immigration) for determining appropriate standard of review, duty of fairness not requiring every argument, issue raised during PSSRA hearing be acknowledged in written reasons — (i) Rights-oriented nature of adjudicator’s decision, powers granted by PSSRA favouring greater procedural safeguards — (ii) Adjudicator’s decision final under statutory scheme — (iii) That importance of decision for applicant primarily financial militating only moderately in favour of strong procedural safeguards — (iv) P.S.S.R.B. Rules of procedure requiring decision to contain “summary” of evidence, suggesting fewer procedural safeguards called for — (b) PSSRA, s. 25 giving Board power to accept evidence as in its discretion sees fit, whether or not admissible in Court — Suggesting minimum of procedural safeguards vis-à-vis admission of evidence — Balanced with other Baker factors, Adjudicator not required by rules of procedural fairness to refuse to admit document given to applicant just prior to hearing — (c) Absence of record of proceedings breaching rules of natural justice only if frustrating Court’s hearing of appeal or review — As Court able to decide all matters on material before it, lack of transcripts not resulting in breach of natural justice.
Public Service — Termination of employment — Judicial review of P.S.S.R.B. Adjudicator’s denial of grievance of termination after eight years on leave without pay — Adjudicator denying amendments to pleadings to claim additional relief — Applying test in Baker v. Canada (Minister of Citizenship and Immigration) for identifying appropriate rules of procedural fairness, standard of review patent unreasonableness — Critical factor that Adjudicator’s decision within area of expertise — Nature of question involving interpretation, application of procedural matters — Adjudicator’s expertise lies in deciding procedural matters — No regulations cover procedure governing manner in which grievances referred to adjudication — P.S.S.R.B. Regulations, s. 11 providing where procedural matter not provided for by Regulations arising during proceeding before Board, matter dealt with as Board directing — Supporting conclusion certain amount of deference owed to Adjudicator’s decision — Purpose of PSSRA administrative, but terms under which Board operates exception to administrative nature of PSSRA — Adjudicator’s decisions establishing rights as between employees, public service — That Adjudicator’s role under s. 92 rights-oriented favouring greater procedural requirements — Adjudicator relying on Burchill v. Attorney General of Canada — Burchill standing for proposition grievor may not amend grievance in respect of nature of acts complained of after beginning presentation of grievance at hearing — Not wrongly relied upon even though applicant sought to amend relief sought not acts complained of — Adjudicator not exercising discretion in patently unreasonable manner — As to error of fact, Adjudicator in better position than Court on judicial review — None of findings impugned by applicant outside Adjudicator’s expertise — Though not necessarily agreeing with every finding of fact, not Court’s role to substitute its opinion for that of Adjudicator.
Constitutional law — Charter of Rights — Equality rights — Judicial review of Public Service Staff Relations Board’s denial of grievance of termination — Applicant afflicted with chronic fatigue syndrome in 1985 — On leave without pay for eight years prior to termination — Question whether suffered discrimination on ground of disability not having much precedential value, considered as question of mixed fact, law requiring review according to standard of correctness — Treasury Board policy under which granted leave without pay flexible enough to accommodate even those whose illness preventing them from returning to work for many years — Treatment of applicant not prima facie discriminatory under Charter, s. 15(1) — No evidence applicant suffered discrimination as result of not being able to peruse transcript of hearing.
This was an application for judicial review of the Public Service Staff Relations Board’s denial of the applicant’s grievance of the termination of his employment by Natural Resources Canada. The applicant, a branch head, was afflicted with chronic fatigue syndrome in 1985. In 1988, after his sick leave credits were exhausted, he was granted leave without pay pursuant to a Treasury Board policy which stipulated that normally such leave would terminate within two years, but permitted extensions in exceptional circumstances. After the applicant refused to attend a medical appointment in November 1996 he was terminated for cause. The applicant grieved his termination under the Public Service Staff Relations Act (PSSRA). The grievance requested damages, but did not attach a dollar amount. After the Ministry had presented its arguments, the applicant submitted a 349-page written submission wherein he claimed $200,000 for damages, $2,000,000 for a conspiracy to violate his Charter rights and $10,000,000 in related punitive damages. The Adjudicator accepted all of the exhibits adduced by the Minister, including a letter written by the applicant and a Canadian Human Rights Commission complaint form completed earlier by the applicant making allegations concerning the Ministry. The Adjudicator sought at least once to continue the hearings into the afternoon, but was advised that, because of the applicant’s disability, the hearings were scheduled to last only during the mornings. He ruled that he had jurisdiction to consider Charter arguments and entertained the applicant’s Charter submissions. In his decision the Adjudicator addressed some, but not all of the issues and objections raised by the applicant during the hearing. He described the $10,000,000 claim as a “contradiction” and a “ridiculous abuse of the grievance process”, and rejected all of the proposed amendments, relying on Burchill v. Attorney General of Canada. He also rejected the applicant’s claim that the Ministry had breached his Charter rights.
The issues were: (1) whether there was a reasonable apprehension that the Adjudicator was personally biased against the applicant; (2) whether the Adjudicator breached other principles of natural justice and procedural fairness; (3) whether the Adjudicator erred in law; (4) whether the Adjudicator committed a jurisdictional error by ignoring relevant considerations;(5) whether the Adjudicator made an erroneous finding of fact; and (6) whether the Ministry violated the applicant’s rights under the Charter.
Held, the application should be dismissed.
(1) The test for personal (as distinguished from institutional) bias is whether an informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that there was a reasonable apprehension of bias. In support of his claim of bias, the applicant submitted that the Adjudicator showed consistent deference to counsel for the Minister. Viewed realistically and practically, the Court could not conclude that this evidence raised a reasonable apprehension of bias. The applicant also maintained that the admission into evidence of the Canadian Human Rights Commission complaint form and two references to it in the Adjudicator’s reasons were improper and demonstrated that the Adjudicator was “spiteful”. As master of his own procedure, it was within the Adjudicator’s discretion to admit the form and weigh its relevance when developing his reasons. The admission of the form per se could not ground the applicant’s claim; the applicant needed some additional cogent evidence inferring bias, which he did not adduce. As to the Adjudicator’s comments concerning the applicant’s attempt to increase the relief sought by amending his claim, they would not lead an informed person, viewing the matter realistically and practically, to conclude that the Adjudicator was prejudiced against the applicant.
(2)(i) The applicant submitted that the duty of fairness required the Adjudicator to comment on, or at least acknowledge, certain issues raised and statements made by the applicant during the hearing. It is settled law that a tribunal is not required in its written reasons to refer to every issue raised by the parties or to every finding leading to the ultimate conclusion. On analysing the factors for identifying the appropriate rules of procedural fairness set out by L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), the above-mentioned principle continues to accurately reflect the law in relation to the contents of a tribunal’s reasons. The first factor referred to in Baker is the nature of the decision being made. The role of an adjudication hearing is to establish the rights of employees in respect of a collective agreement, arbitral award or actions by the public service. Establishing an employee’s rights requires the determination of questions of fact and of law during the hearing. To help the adjudicator conduct hearings, the PSSRA grants him some of the powers of a superior court of general jurisdiction. The rights-oriented nature of an adjudicator’s decision and the powers granted to him or her by the PSSRA militate in favour of greater procedural safeguards. The second factor referred to in Baker is the nature of the statutory scheme and the terms of the statute pursuant to which a tribunal operates. The statute does not provide for an appeal from an adjudicator’s decision, though an employee may seek judicial review thereof. Thus adjudicators are final decisionmakers in respect of employee grievances. The third factor is the importance of the decision to the individual affected. The primary ramification of the decision for the applicant was financial in nature, thus militating only moderately in favour of strong procedural safeguards. The fourth relevant factor is the practice concerning procedure which the tribunal has developed over time. P.S.S.R.B. Regulations and Rules of Procedure, 1993, paragraph 83(c) requires an adjudicator’s decision to contain a “summary” of the evidence and representations, suggesting that fewer procedural safeguards are called for. Balancing all of these factors, an adjudicator’s duty of fairness does not require that every argument and issue raised during a hearing under the PSSRA be acknowledged in the written reasons.
(ii) Allegations that the Adjudicator attempted to speed up the schedule, thus displaying disregard for the applicant’s disability and contempt towards him personally were just that — mere allegations which were not accepted in light of other affidavit evidence.
(iii) The applicant’s third submission relevant to procedural fairness was that the Adjudicator improperly admitted evidence tendered by the respondent, including one document which was disclosed to the applicant just prior to the hearing, and the CHRC complaint form. As to the first document, the Baker factors considered above applied. In addition, PSSRA, section 25 provides that the Board has the power to receive and accept such evidence as in its discretion it sees fit, whether admissible in a court of law or not. This section strongly suggests that only a minimum of procedural safeguards vis-à-vis the admission of evidence at a PSSRA hearing are required. Balanced with the other factors detailed in Baker the Adjudicator was not required by the rules of procedural fairness to refuse the document given to the applicant just prior to the hearing. Admission of the CHRC complaint form was neither a breach of Privacy Act, sections 7 and 8, nor a breach of the rules of procedural fairness.
(iv) The applicant argued that the Board’s policy of not recording the proceedings breached a requirement of natural justice. Absence of a recording will only breach the rules of natural justice only if it frustrates the court in hearing an appeal or judicial review. As neither the PSSRA nor the P.S.S.R.B. Regulations require that transcripts be made, it had to be determined whether the record allowed the Court to properly dispose of the application. The Court had before it the Adjudicator’s written reasons, the record before him and affidavits from the applicant and the respondent’s witness testifying as to what occurred at the hearings. As the Court was able to decide all matters based on the material before it, lack of a transcript would not result in a breach of natural justice.
(3) The applicant submitted that the Adjudicator erred in law when he denied the applicant’s attempts to amend his pleadings during the hearing to claim additional relief. This was a discretionary decision which involved an interpretation and application of procedural rules, a matter within the Adjudicator’s expertise. No regulations cover the procedure governing the manner in which grievances may be referred to adjudication. P.S.S.R.B. Regulations, section 11 provides that where a procedural matter that is not provided for by the Regulations arises during the course of a proceeding before the Board, the matter shall be dealt with in such manner as the Board directs. That the decision was within the Adjudicator’s realm of expertise supported the conclusion that a certain amount of deference be shown to the Adjudicator’s decision. The purpose of the PSSRA is administrative in that it creates the Board to regulate the relationship between employees and their unions, and the federal public service, but the terms under which adjudicators operate are an exception to that administrative scheme. Adjudicators’ decisions establish rights as between employees and the public service, thus favouring greater procedural requirements. Adopting the test in Baker, the appropriate standard of review was patent unreasonableness, the critical factor being that the Adjudicator’s decision was within his area of expertise.
Burchill stands in part for the proposition that a grievor may not amend his grievance in respect of the nature of the acts complained of once he has begun presenting his grievance at a hearing. It was not wrongly relied upon, even though the applicant sought to amend the relief he sought as opposed to the acts complained of. There was no defect on the face of the Adjudicator’s reasons. The Adjudicator did not exercise his discretion in a patently unreasonable manner.
(4) The applicant submitted that the Adjudicator did not consider some of his evidence. There was no evidence that the Adjudicator did not read all submitted materials prior to the end of the hearing. Not citing every shred of evidence adduced by the applicant, but rather citing the respondent’s evidence, was not proof that the Adjudicator read none of it, but merely indicated the weight that the Adjudicator attributed after considering each part of the 349 pages. That the Adjudicator did not agree with the applicant was not proof that the applicant’s submissions were left unconsidered.
(5) An adjudicator is in a much better position to ascertain facts than a court on judicial review. None of the findings impugned by the applicant were outside the Adjudicator’s expertise. The proper standard of review was patent unreasonableness. Though the Court did not necessarily agree with every finding of fact, it was not the Court’s role to substitute its opinion simply because it differed from that of the Adjudicator.
(6) The applicant alleged that the Adjudicator erred in not finding the actions of the Ministry in breach of Charter, subsection 15(1). As the applicant’s circumstances and the Ministry’s actions were fairly unique, the question was not of much precedential value and was considered to be one of mixed law and fact. As the interpretation and application of the Charter falls outside of a PSSRA adjudicator’s area of expertise, the question of mixed fact and law called for a standard of correctness to be observed.
The relevant prohibited ground of discrimination was the applicant’s disability. The Treasury Board policy under which Ministry officials granted the applicant leave without pay in 1988 was flexible enough to accommodate even those whose illness prevents them from returning to work for many years. It therefore did not discriminate against the applicant. The applicant’s leave status was discontinued only after eight years, and only because he would remain unable to return to work for the foreseeable future. The actions of departmental employees in implementing the policy were not discriminatory. The treatment of the applicant was not prima facie discriminatory pursuant to subsection 15(1). The Adjudicator was, therefore, correct on the question of whether there was sufficient evidence to found a claim of discrimination.
There was no evidence that the applicant suffered discrimination as a result of not being able to peruse a transcript of the hearing.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 10, 44(4)(a).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Financial Administration Act, R.S.C., 1985, c. F-11, ss. 11(2)(g) (as am. by S.C. 1992, c. 54, s. 81).
Privacy Act, R.S.C., 1985, c. P-21, ss. 7, 8(2)(b),(d).
P.S.S.R.B. Regulations and Rules of Procedure, 1993, SOR/93-348, s. 83(c).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 21(1), 25, 92(1)(b) (as am. by S.C. 1992, c. 54, s. 68), 96.1 (as enacted idem, s. 70), 99, 100(1),(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; R. v. S. (R.D.), [1997] S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 1 Admin. L.R. (3d) 74; 118 C.C.C. (3d) 353; 10 C.R. (5th) 1; 218 N.R. 1; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382; (1973), 41 D.L.R. (3d) 6; [1974] 1 W.W.R. 653; 73 CLLC 14,193; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; (1997), 144 D.L.R. (4th) 577; 8 Admin. L.R. (3d) 89; 210 N.R. 101; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 43 Imm. L.R. (2d) 117; 226 N.R. 201.
DISTINGUISHED:
Barry v. Canada (Treasury Board) (1997), 221 N.R. 223 (F.C.A.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 11 Admin. L.R. (2d) 59; 93 CLLC 14,022; 150 N.R. 161; Perera v. Canada, [1998] 3 F.C. 381 (1998), 158 D.L.R. (4th) 341; 225 N.R. 161 (C.A.); Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241.
CONSIDERED:
Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (1980), 37 N.R. 530 (C.A.); Rhéaume v. Canada (1992), 11 Admin. L.R. (2d) 124; 153 N.R. 270 (F.C.A.).
REFERRED TO:
Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; (1998), 160 D.L.R. (4th) 1; [1999] 6 W.W.R. 453; 10 Admin. L.R. (3d) 1; 168 Sask. R. 104; 226 N.R. 319; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 127 B.C.A.C. 161; 66 B.C.L.R. (3d) 253; 46 C.C.E.L. (2d) 206; 244 N.R. 145.
AUTHORS CITED
Shorter Oxford English Dictionary. Oxford: Clarendon Press, 1989, “summary”.
Treasury Board Manual. Personnel Management Component: Compensation. Ottawa: Treasury Board of Canada.
APPLICATION for judicial review of the Public Service Staff Relations Board’s denial of the applicant’s grievance of his termination on the grounds of bias, breach of principles of natural justice and procedural fairness, and violation of Charter, section 15 rights. Application dismissed.
APPEARANCES:
Eric Scheuneman applicant on his own behalf.
Stéphane Arcelin for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Cullen J.: This is an application for judicial review brought pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5]. The applicant seeks an order quashing a decision by the Public Service Staff Relations Board, dated October 20, 1998 [[1998] C.P.S.S.R.B. No. 93 (QL)], denying a grievance by the applicant against his termination by Natural Resources Canada. The applicant also seeks an order finding in favour of his grievance or, in the alternative, an order requiring the Public Service Staff Relations Board to redetermine his grievance.
[2] On the first day of hearings, the applicant asked that, due to his disabilities, he be allowed to make further written submissions in lieu of oral representations. Counsel for the respondent eventually accepted his new submissions for the most part, although he asked the Court to make a determination in respect of certain portions to which he maintained an objection. Because of the circumstances, both parties agreed that it would be appropriate for the Court to render a decision on the record.
[3] Both parties also agreed to adjourn the hearings sine die in order to allow the Court an opportunity to study the new submissions, rule on their admissibility and to draft any questions it might still have. In the event, this last step proved unnecessary. As for the admissibility of the submissions, the Court cannot admit those portions which consist of new evidence.
Facts
[4] The applicant is the former Head, Technology and Industry Development, Energy Technology Branch, Natural Resources Canada (hereinafter the Ministry). On June 4, 1984 he began working part-time from his home. Sometime in 1985 he acquired candidiasis and Myalgic Encephalomyelitis (hereinafter chronic fatigue syndrome). Eventually, the respondent attempted to secure a return to work by the applicant but his return to full-time work in the summer of 1988 only resulted in him having to go on sick leave as a result of stress. After his sick leave credits had been exhausted, his supervisors granted him leave without pay on September 19, 1988. The Treasury Board policy [Treasury Board Manual. Personnel Management Component: Compensation, Appendix A] under which his supervisors granted this leave provides (respondent’s record at Tab 30):
When employees are unable to work due to illness or injury and have exhausted their sick leave credits or injury on duty leave, managers must consider granting leave without pay.
Where it is clear that the employee will not be able to return to duty within the foreseeable future, managers must consider granting such leave without pay for a period sufficient to enable the employee to make the necessary personal adjustments and preparations for separation from the Public Service on medical grounds.
Where management is satisfied that there is a good chance the employee will be able to return to duty within a reasonable period of time (the length of which will vary according to the circumstances of the case), leave without pay provides an option to bridge the employment gap. Management must regularly re-examine all such cases to ensure that continuation of leave without pay is warranted by current medical evidence.
Management must decide upon the termination date for such leave without pay within two years of the leave’s commencement, although it can, in some circumstances, be extended to accommodate exceptional cases.
The period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining.
[5] The applicant remained unfit to return to work and was laid off in 1989, though, this was successfully grieved and the applicant reinstated with the status of leave without pay. The Ministry inquired about the health of the applicant in 1990 and 1992 and was provided with doctor’s certificates stating that he continued to be incapacitated. In early 1994, the Ministry asked whether the applicant would be able to return to work or whether he would be seeking a medical retirement. The applicant rejected both options, seeking to remain on leave without pay. The Ministry did not, however, want to leave the applicant on leave without pay indefinitely and continued to seek a medical prognosis concerning the applicant’s ability to work. Eventually the applicant sent to the Ministry a letter written by a doctor and dated December 12, 1994. It stated (respondent’s record at Tab 13):
I, therefore, do not anticipate Mr. Sheuneman [sic] being ready for part-time work at any occupation in the near future, and I fully expect that he will remain so disabled for an indefinite number of years (many) in the future.
[6] A further two years of communications between both parties shows how the applicant was concerned about the legality of the Ministry’s actions and the financial implications of the options put to him. For instance, a letter written to the Ministry and dated December 7, 1995 provides (respondent’s record at Tab 17):
The pension information clearly illustrates that it would be detrimental to my short-term and long-term financial opportunities and security to take a medical retirement.
After the applicant refused to attend at a medical appointment in November, 1996 he was terminated for cause on November 29, 1996 pursuant to paragraph 11(2)(g) [as am. by S.C. 1992, c. 54, s. 81] of the Financial Administration Act, R.S.C., 1985, c. F-11. The applicant grieved his termination to the Public Service Staff Relations Board (hereinafter Board) in early 1997 under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (hereinafter PSSRA). His grievance was heard by an adjudicator, Mr. Barry Turner, over three days in September, 1998. Ms. Patti Bordeleau appeared as an observer for the Ministry.
[7] In the applicant’s grievance, there was a request, in part, for damages but no dollar amount was attached to it. After the Ministry had presented its arguments, the applicant submitted a 349-page written submission instead of making oral arguments. The Adjudicator accepted the additional submissions. Within the 349 pages, the applicant attempted to put a dollar amount—$200,000, to his claim for damages and sought the censure of certain Ministry employees. The applicant also sought to claim $2,000,000 for conspiracy to violate his Charter rights [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and $10,000,000 in related punitive damages.
[8] During the hearing, counsel for the Ministry adduced over 30 exhibits. The applicant objected on various grounds to most, if not all of them, being entered but could not persuade the Adjudicator to refuse any of them. One of these pieces of evidence was a letter written by the applicant, a copy of which was given to him by counsel for the Ministry just prior to the first day of hearings. The Adjudicator entered the letter, stating that it was clearly relevant. Another piece of evidence consisted of a Canadian Human Rights Commission complaint form completed earlier by the applicant and making allegations concerning the Ministry. The Adjudicator entered the complaint form and stated that he “would weigh it accordingly”.
[9] The Adjudicator decided on several other procedural matters, for instance denying at least two attempts by the applicant to adjourn the hearings and one attempt by him to postpone the last day of hearings. The Adjudicator sought at least once to continue the hearings into the afternoon but was apprised of the fact that, because of the applicant’s chronic fatigue syndrome, the hearings were scheduled to last only during the mornings. There is disagreement as to how the Adjudicator reacted when told this. In a letter to the Board dated September 19, 1998 the applicant sought to have the Adjudicator removed for bias and expressed his opinion that transcripts were required in order to accurately record what was going on at the hearing.
[10] Counsel for the Ministry tried, in its turn, to strike certain submissions made by the applicant, including the allegation that the Ministry had breached the applicant’s Charter rights. The 349-page written submission contained, in part, a history of the treatment of disabled people, the purpose of subsection 15(1) of the Charter, some of the jurisprudence relating to it and some legal arguments. The Adjudicator ruled that he had the jurisdiction to consider Charter arguments and entertained the applicant’s Charter submissions.
[11] In a decision dated October 20, 1998, the applicant’s grievance was denied. In the reasons for decision, the Adjudicator addressed some but not all of the issues and objections raised by the applicant during the hearing. He did address the amendments that the applicant had sought to adduce in respect of the relief sought, describing the $10,000,000 as a “contradiction” and “a ridiculous abuse of the grievance process”. He rejected all of the proposed amendments on the basis of Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.). He also rejected the applicant’s claim that the Ministry had breached his Charter rights, writing (applicant’s record, at page 63):
However, the grievor has failed to satisfy me on the evidence that in terminating his employment the employer engaged in any violation of either the CHRA or the Charter.
Legal Issues
[12] After having reviewed all submissions, including those entered by the applicant on the first day of the hearings, and in view of their considerable number, I have found it necessary to group them under six general categories. The first category of submissions concerns whether there exists a reasonable apprehension that the Adjudicator was biased against the applicant. The second category covers whether the Adjudicator breached other principles of natural justice and procedural fairness. The third category covers whether the Adjudicator committed a jurisdictional error by ignoring relevant considerations. The fourth category of submissions concerns whether the Adjudicator erred in law on a number of different points. The fifth category covers whether the Adjudicator made an erroneous finding of fact. The sixth category concerns whether the Ministry violated the applicant’s rights under the Canadian Charter of Rights And Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (hereinafter Charter). Submissions not found under one of these headings were considered by this Court to be without merit. Much of the evidence which the applicant attempted to adduce in his written representations on the first day of hearings was ruled inadmissible.
Bias
[13] The applicant submits that many of the Adjudicator’s actions “were biased against me and were prejudicial to my case” (paragraph 149 of the applicant’s memorandum). This Court understands this as a reference to an apprehension by the applicant that the Adjudicator was personally biased against him. This must be distinguished from the institutional bias which the applicant’s written submissions do not support.
[14] This Court agrees with the submission of the respondent that the test for such bias is to be found in the dissenting opinion of de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. This Court must, therefore, look at whether there is a reasonable apprehension of bias. It must ask itself whether an informed person, viewing the matter realistically and practically—and having thought the matter through, would conclude that there was a reasonable apprehension of bias.
[15] The respondent also submitted that allegations of bias must not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for the perception that a particular determination has been made on the basis of prejudice or generalization. Counsel relies for this proposition on R. v. S. (R.D.), [1997] 3 S.C.R. 484. In his reasons Cory J. wrote [at page 541]:
These examples demonstrate that allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.
Though this decision centred around the remarks made by a youth court judge, the principle enunciated is applicable to tribunals such as adjudicators presiding at a PSSRA hearing.
[16] In support of his claim of bias the applicant submits extensive evidence centring around three allegations. The first allegation is that the Adjudicator showed consistent deference to counsel for the Ministry. The evidence listed at paragraph 148 of the applicant’s memorandum in support of this allegation, however, can do little to tempt this Court towards a finding of bias. It consists of statements and procedural rulings by the Adjudicator to which the applicant ascribes Machiavellian motives. Though the evidence, at first blush, might raise one’s eyebrows, this Court gives it little weight in light of the evidence tendered in the affidavit of the respondent’s witness, Ms. Patti Bordeleau. She was present during the adjudication hearing. Looking at this evidence realistically and practically, this Court cannot conclude that it raises a reasonable apprehension of bias.
[17] The second lot of evidence that the applicant relies on centres around the admission into evidence of a Canadian Human Rights Commission complaint form completed earlier by the applicant. The applicant had objected that admitting the form into the tribunal record was improper while counsel for the Ministry had argued that the form was relevant and that its veracity was not disputed by the applicant. The Adjudicator entered the form and stated in his reasons that he “would weigh [the form] accordingly” (applicant’s record, at page 56). The applicant maintains in his application that the admission of this form into the record and the two references to it in the Adjudicator’s reasons were improper and demonstrate that the Adjudicator was “spiteful” and had an opprobrious “attitude”.
[18] The Adjudicator’s decision to weigh the complaint form “accordingly” implies that he admitted it with an eye to accurately weighing its relevancy or necessity when it came time to develop his reasons. As the master of his own procedure, the Adjudicator had the discretion to do this. The admission of the form per se , therefore, cannot ground the claim that the applicant seeks to make; the applicant needs some additional piece of cogent evidence inferring bias. Instead of solid evidence, however, the applicant has tendered allegations that, in admitting the complaint form, the Adjudicator may have breached the Privacy Act, R.S.C., 1985, c. P-21 or breached a rule concerning the admissibility of evidence. Neither of these allegations, however, bear up to scrutiny, as shown below. They do not amount, therefore, to the solid evidence on which this Court, weighing matters realistically, practically and thinking them through, would conclude that there was a reasonable apprehension of bias. This conclusion may also be applied to the other procedural decisions made by the Adjudicator which the applicant alleges demonstrate a bias against him. Whether the admission of the complaint form by the Adjudicator breaches the duty of fairness owed to the applicant will be examined below.
[19] The third lot of evidence that the applicant relies on centres around the Adjudicator’s comments concerning the applicant’s efforts to increase the relief sought. The applicant requested in his grievance to the board that he receive, in part, undetermined general damages. Mid-way through the hearings, the applicant attempted to amend his claim for general damages to read $200,000 and sought the censure of certain employees at the Ministry. The applicant still later attempted to add further relief: $2,000,000 for conspiracy to violate his Charter rights and $10,000,000 in punitive damages for the same. The Adjudicator, in his decision, rejected all of the new claims for damages, referring to the claim for $10,000,000 as a “contradiction” and “a ridiculous abuse of the grievance process” (applicant’s record, at page 64).
[20] With regards to the Adjudicator’s first comment, there is no evidence that this final claim contradicted previous relief sought. As to the second comment, it portrays an Adjudicator who believes that the claim was not only brought in complete disregard to procedure but was, at $10,000,000, likely vexatious. The fact that the second comment was expressed in such emphatic terms does not, in the circumstances, help the applicant’s claim. Correct or not in his assessment, neither comment would lead an informed person, viewing the matter realistically and practically to conclude that the Adjudicator was prejudiced towards the applicant.
Breach of Natural Justice or Procedural Fairness
[21] The applicant submits that the Adjudicator breached principles of natural justice and procedural fairness repeatedly throughout the hearing and in his reasons. First, the applicant submits that the duty to be fair required the Adjudicator to comment on, or at least acknowledge, certain issues raised and statements made by the applicant during the hearing. Neither party made any legal submissions to help guide this Court in its findings.
[22] For over 20 years it has been well established in law that a tribunal is not required in its written reasons to refer to every issue raised by the parties or to every finding leading to the ultimate conclusion. Dickson J., as he was then, wrote in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382 (hereinafter SEIU) [at page 391]:
The reasons for decision of the Board do not state the number of persons employed by S.R.N.A. and the Board did not expressly find that S.R.N.A. was an employer or employer’s agent but I do not regard this as fatal to the Board’s jurisdiction. A tribunal is not required to make an explicit written finding on each constituent element, however subordinate, leading to its final conclusion. The role of the Court in a case such as this is supervisory, not appellate: s. 21 of the Act.
In light of the recent decision by L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, however, some observers might wonder whether the principle enunciated by Dickson J. continues to be applicable. On analysing the factors enumerated by L’Heureux-Dubé J., this Court believes that it continues to accurately reflect the law in relation to the contents of a tribunal’s reasons.
[23] The first factor referred to in Baker, supra is the nature of the decision being made. The nature of an adjudication hearing is based on its role in establishing the rights of employees in respect of a collective agreement, arbitral award or actions by the public service. The provision under which the applicant’s hearing was convoked is subparagraph 92(1)(b)(ii) [as am. by S.C. 1992, c. 54, s. 68] of the PSSRA, supra:
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
…
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
…
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
Establishing an employee’s rights requires the determination of questions of fact and questions of law during the hearing. To help the adjudicator conduct hearings, the PSSRA grants him or her some of the powers of a superior court of general jurisdiction. Section 25 provides, in part:
25. The Board has, in relation to the hearing or determination of any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board deems requisite to the full investigation and consideration of matters within its jurisdiction, in the same manner and to the same extent as a superior court of record;
(b) to administer oaths and solemn affirmations;
Adjudicators are granted these powers through the operation of section 96.1 [as enacted idem, s. 70] of the PSSRA, supra. Section 96.1 provides:
96.1 An adjudicator has, in relation to the adjudication, all the powers, rights and privileges of the Board, other than the power to make regulations under section 22.
The rights-oriented nature of an adjudicator’s decision and the powers granted to him or her by the PSSRA militate in favour of greater procedural safeguards.
[24] The second factor referred to in Baker, supra is the nature of the statutory scheme and the terms of the statute pursuant to which a tribunal operates. Under the statutory scheme, and as exemplified by section 92 of the PSSRA, supra as cited above, the position of adjudicators is that of a final decision maker in respect of a grievance by an employee. No appeal from an adjudicator’s decision is provided for, though, an employee may seek its judicial review. This suggests that more procedural safeguards are appropriate.
[25] A significant factor in identifying the appropriate rules of procedural fairness is the importance of the decision to the individual affected. In the case at bar, the primary ramification of the decision for the applicant appears, on review of his letters to the Ministry and submissions to the Adjudicator, to centre around such financial matters as severance pay, superannuation and other benefits to which he was entitled while on leave. For example, a letter from the applicant to the Ministry dated December 7, 1995 provides (respondent’s record, at Tab 17):
The pension information clearly illustrates that it would be detrimental to my short-term and long-term financial opportunities and security to take a medical retirement.
The fact that the importance of the decision for the applicant was primarily financial in nature militates only moderately in favour of strong procedural safeguards.
[26] The fourth relevant factor is the practice concerning procedure which the tribunal has developed over time. Procedure in respect of the decisions rendered by adjudicators is guided by subsection 100(3) of the PSSRA, supra:
100. …
(3) The Board may make regulations in relation to the adjudication of grievances, including regulations respecting
…
(d) the form of decisions rendered by adjudicators.
Paragraph 83(c) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 SOR/93-348 (hereinafter P.S.S.R.B. Regulations) provide:
83. The decision of an adjudicator or a board of adjudication shall contain
(a) a summary of the grievance;
(b) a summary of the representations of the parties; and
(c) the reasons for the decision.
The use of the word “summary” implies that not all representations of the parties need be recorded in an adjudicator’s decision. This Court notes that the word summary is defined in the Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1989) as: “Containing or comprising the chief points or the sum and substance of a matter;” Paragraph 83(c) of the P.S.S.R.B. Regulations, supra is a significant factor in suggesting that fewer procedural safeguards are called for.
[27] In balancing all the above-mentioned factors, this Court concludes that an adjudicator’s duty of fairness does not require that every argument and issue raised during a hearing under the PSSRA, supra, and in particular those relating to bias and those listed in the applicant’s memorandum at paragraph 151, be acknowledged in the written reasons. L’Heureux-Dubé J., in Baker, supra, wrote that the list of factors enumerated in her decision is not exhaustive. This Court’s conclusion in this matter was reached, however, without the need to refer to other factors which, in other circumstances, will clearly be pertinent to deciding the correct level of procedural fairness.
[28] The second submission by the applicant in respect of procedural fairness is grounded on the allegations that the Adjudicator attempted to push the applicant to speed up the schedule, showed a disregard for the applicant’s disability and contempt towards him personally. He cites as examples several attempts by the Adjudicator to continue hearing submissions past noon despite that each of the three hearings were scheduled to end at that time and despite that the Adjudicator was reminded of this. He also asserts that the Adjudicator was not happy about the fact that the hearings had been scheduled over three days. The respondent denies the applicant’s allegations.
[29] The Adjudicator’s written reasons reveal little about how he accommodated the applicant’s needs. They do imply that two requests for adjournments were rejected and that the third day of hearings was held, as scheduled, despite that the applicant objected. The Court can find no fault, however, with these decisions. The reasons also reveal that the applicant’s oral representations, made in lieu of written submissions (due to his disabilities), were accepted by the Adjudicator despite objections from counsel for the Ministry.
[30] The evidence of the applicant is much more unequivocal in the manner in which it impugns the actions and motives of the Adjudicator but it amounts only to allegations which, in the face of those found in the affidavit of Ms. Patti Bordeleau, this Court chooses not to accept. It appears that the Adjudicator was unfamiliar with the schedule of hearing times and dates. He had to be brought up to speed by either the applicant or counsel for the Ministry. This does not mean, however, that the evidence infers that the Adjudicator attempted to push the applicant to hurry up or that he showed a disregard for the applicant’s disability. The evidence, therefore, cannot ground a claim based on the breach of procedural fairness or natural justice.
[31] The applicant’s third submission which is relevant to procedural fairness is that the Adjudicator improperly admitted evidence tendered by the respondent. This evidence includes a copy of one document which was disclosed to the applicant just prior to the hearing. It also includes the applicant’s Canadian Human Rights Commission complaint form (hereinafter complaint form) which the applicant maintains was confidential. The form contained an allegation that the Treasury Board had a policy of terminating disabled employees and that this contravened section 10 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. At the hearing, counsel for the Ministry argued, in part, that both pieces of evidence were relevant. The Adjudicator entered the first document “as it was clearly relevant” (applicant’s record, at page 45) and entered the complaint form, indicating that he “would weigh it accordingly” (applicant’s record, at page 56).
[32] The applicant’s submission that the entering of the complaint form was a breach of the rules of procedural fairness is grounded on the assertion that the form was confidential pursuant to sections 7 and 8 of the Privacy Act, supra. The Court notes, however, that the complaint form was not confidential due to the operation of paragraph 8(2)(b) of the Privacy Act, supra:
8. …
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
…
(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
Paragraph 44(4)(a) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 provides:
44. …
(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
The Canadian Human Rights Commission was, therefore, allowed to disclose the form to the Ministry. Paragraph 8(2)(d) of the Privacy Act, supra also operates, in the circumstances, to render the complaint form non-confidential:
8. …
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
…
(d) to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada
As the complaint form was not confidential, the submission has no basis and, therefore, must fail.
[33] With regards to the first document admitted into evidence by the Adjudicator, this Court need only, for the most part, refer to the factors enumerated in Baker, supra and considered above. The only factor requiring comment concerns the relevant practice of a tribunal. The practice of adjudicators in respect of the admission of evidence at a hearing is guided by section 25 of the PSSRA, supra which provides:
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;
This section strongly suggests that only a minimum of procedural safeguards vis-à-vis the admission of evidence at a PSSRA hearing are required. Balanced with the other factors detailed in Baker, supra and mentioned above, this Court finds that the Adjudicator was not required by the rules of procedural fairness to refuse the document given to the applicant just prior to the hearing. Though this Court has found that, in regards to the applicant’s complaint form, sections 7 and 8 of the Privacy Act, supra were not breached, it concludes, in addition, that the admission and reference to a complaint form is not a breach of the rules of procedural fairness.
[34] The applicant’s one concern involving natural justice focuses on the decision by the Board not to provide him with a transcript of the hearings. In a letter sent to the Board after the second day of hearings the applicant expressed the opinion that transcripts would enable him to better impeach the Adjudicator. The Board never responded.
[35] The applicant argues that due to his disability and his impecunious state, the implementation of the Board’s policy of not recording the proceedings discriminated against him pursuant to subsection 15(1) of the Charter. As a result, the applicant argues, the Adjudicator breached a requirement of natural justice pursuant to Rhéaume v. Canada (1992), 11 Admin. L.R. (2d) 124 (F.C.A.). The respondent made no submissions in regards to this argument.
[36] Contrary to the applicant’s submission, the decision in Rhéaume, supra, stands for the proposition that the rules of natural justice will never necessitate the need for transcripts. Marceau J.A. wrote [at page 125]:
In Kandiah v. Canada (Minister of Employment and Immigration), unreported judgment dated April 13, 1992, file No. A-113-90, … this Court unequivocally stated that it did not believe that the obligation of a tribunal to provide a full tape recording of its proceedings and hearings could be derived from the mere fact that it is subject to the rules of natural justice or that it has a duty to give full effect to the fundamental rights of persons appearing before it as guaranteed by the Charter.
As neither party made any further submissions in regards to this issue, this Court notes the decision in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793. Here, L’Heureux-Dubé J. [at page 842] found that an absence of a recording will only breach the rules of natural justice if it frustrates a court’s attempt at appeal or review:
In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice.
As neither the PSSRA, supra nor the P.S.S.R.B. Regulations, supra require that transcripts be made the reasoning of L’Heureux-Dubé J. applies to Board hearings.
[37] This Court has before it the Adjudicator’s written reasons, the record before him and affidavits from the applicant and the respondent’s witness testifying as to what occurred at the hearings. The applicant is correct to note that some parts of this material contradict other parts. This Court is able, however, to decide all matters based on this material. A lack of transcripts will not, therefore, result in a breach of natural justice. Whether the applicant’s subsection 15(1) rights under the Charter have been breached will be determined in the section dealing with the applicant’s Charter challenges.
Error in Making a Discretionary Decision
[38] The applicant submits that the Adjudicator erred in law when he denied the applicant’s attempts to amend his pleadings during the hearing in an effort to claim additional relief. The applicant had not indicated the particular amount of damages which he was seeking in his original grievance form submitted to the Board. Subsequently, he had sought in his 349-page written submission to claim $200,000 in general damages and $10,000,000 in punitive damages. In rejecting these amendments, the Adjudicator relied on Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.).
[39] Though the applicant worded his claim in terms of a question of law, this Court considers that the decision in question was more in the vein of a discretionary one. That the Adjudicator cited Burchill, supra in support of his decision cannot change the fact that he decided the matter pursuant to a discretion over procedural matters granted him by the PSSRA, supra, as detailed below.
[40] The applicant submitted no law in respect of the standard applicable on review of the alleged error. The respondent submitted Barry v. Canada (Treasury Board) (1997), 221 N.R. 223 (F.C.A.) which advocates a standard of patent unreasonableness when reviewing how a collective agreement has been interpreted. In his decision, Robertson J.A. wrote [at page 240]:
In conclusion, the standard of review of an adjudicator’s decision, rendered under the Act, with respect to the interpretation of the provisions of a collective agreement is whether the decision is patently unreasonable.
As the issue in question does not concern the interpretation of a collective agreement but, rather, concerns whether the Adjudicator erred in rejecting the applicant’s grievance amendments, Barry, supra is not on point. The other case submitted by the respondent, Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 is equally unhelpful as it involved a decision by the Board under section 99 of the PSSRA, supra and was decided on the basis that the Board’s decision was a non-jurisdictional one. This Court adopts, therefore, the pragmatic and functional test as detailed in Baker, supra in order to determine the appropriate standard of review for the issue in question.
[41] The first factor to consider is that the nature of the question determined by the Adjudicator involved an interpretation and application of procedural rules. The second factor to consider is that the expertise of the Adjudicator lies in deciding procedural matters, including those relating to the presentation of grievances. Section 100 of the PSSRA, provides:
100. (1) The Board may make regulations in relation to the procedure for the presentation of grievances, including regulations respecting
(a) the manner and form of presenting a grievance;
…
(3) The Board may make regulations in relation to the adjudication of grievances, including regulations respecting
(a) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;
No regulations cover the procedure governing the manner in which grievances may be referred to adjudication. Section 11 of the P.S.S.R.B. Regulations is, therefore, relevant. It provides:
11. Where a procedural matter that is not provided for by these Regulations arises during the course of a proceeding before the Board, the matter shall be dealt with in such manner as the Board directs.
Through the operation of section 96.1, as cited above, the discretion in section 11 to shape procedure is granted to adjudicators. Whether the decision in question falls under paragraphs 100(1)(a), 100(3)(a) or section 11, it is clear that it falls within the Adjudicator’s realm of expertise. This fact supports the conclusion that a certain amount of deference be shown to the Adjudicator’s decision.
[42] The third factor to consider is the purpose of section 92 of the PSSRA under which adjudicators preside at grievance hearings and the purpose of the PSSRA as a whole. The purpose of the PSSRA is administrative in that it creates the Board to regulate the relationship between employees and their unions on the one side and the federal public service on the other. It does this through regimes set up by the PSSRA to help collective bargaining, the creation of collective agreements and the resolution of disputes, grievances and strikes. Subsection 21(1) of the PSSRA provides the specific terms under which the Board operates:
21. (1) The Board shall administer this Act and exercise such powers and perform such duties as are conferred or imposed on it by, or as may be incidental to the attainment of the objects of, this Act including, without restricting the generality of the foregoing, the making of orders requiring compliance with this Act, with any regulation made hereunder or with any decision made in respect of a matter coming before it.
The terms under which adjudicators operate, however, are an exception to the administrative nature of the PSSRA. Their decisions establish rights as between employees and the public service. The decisions are not polycentric in nature unlike many other decisions made pursuant to the PSSRA. That the adjudicator’s role under section 92 of the PSSRA is rights-oriented favours greater procedural requirements.
[43] On balancing all factors this Court finds that the appropriate standard of review is that of patent unreasonableness. It is true that there is no privative clause in the PSSRA, however, the fact that the decision of the Adjudicator was within his area of expertise constitutes the critical factor in the present case. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. states [at page 773]:
Expertise, which in this case overlaps with the purpose of the statute that the tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review.
[44] The Adjudicator relied on Burchill, supra in making his decision to reject the attempts by the applicant to amend his grievance. This case stands, in part, for the proposition that a grievor may not amend his grievance in respect of the nature of the acts complained of once he has begun presenting his grievance at a hearing. Admittedly, the Adjudicator muddied the waters by stating that the decision prevented a grievor from changing “the nature of a grievance” (applicant’s record, at page 64). In addition, the applicant attempted to amend the relief he sought as opposed to the acts complained of. Nevertheless, this Court does not find that Burchill, supra, was wrongly relied on. The applicant relied on Perera v. Canada, [1998] 3 F.C. 381 (C.A.) but this case does not address the procedural issue in question. In the result, no defect can be said to exist on the face of the Adjudicator’s reasons. It follows that the Adjudicator did not exercise his discretion in a patently unreasonable manner.
Jurisdictional Error
[45] The applicant submits that the Adjudicator did not consider some of the applicant’s evidence which the applicant argues was relevant. If this were so, it would amount to a jurisdictional error and render the decision a nullity; see SEIU, supra. The applicant’s worries are grounded on several allegations.
[46] First, the applicant alleges that the Adjudicator did not digest his 349-page written submission prior to the final day of hearings. This allegation, however, is unsupported by any evidence found in the tribunal record and adduced by the applicant. In addition, the applicant cites no law which would support his proposition that a failure by a tribunal to read all submitted materials prior to the end of a hearing constitutes a reviewable error.
[47] Second, the applicant believes that the Adjudicator was tricked by the respondent’s counsel into believing that much of his 349 pages was irrelevant. If the Adjudicator in his reasons, however, did not cite every strand of evidence adduced by the applicant but, rather, cited the respondent’s evidence, this is not proof that he read none of it. In the absence of clearer evidence to the contrary it indicates, merely, the weight that the Adjudicator applied after considering each part of the 349 pages.
[48] Third, the applicant finds it impossible to believe that, if the Adjudicator had read all of the 349 pages, he could have done anything but agree wholeheartedly with the applicant’s submissions. The fact that the Adjudicator did not agree with the applicant, therefore, is proof in the eyes of the applicant that he did not read each page. With respect, this logic cannot move the Court to find that the applicant’s submissions were left unconsidered.
Error of Fact
[49] The applicant submits that the Adjudicator made several erroneous findings of fact. The applicant bases this on his conviction that his evidence had “an equivalent or higher level of verification” than that of the respondent and, therefore, should have carried the day (applicant’s memorandum at paragraph 169).
[50] This Court notes that the standard of review for this question must be determined in accordance with the pragmatic and functional test as outlined in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. This Court need only add one observation, therefore, to its previous review of the factors cited in Baker, supra: an adjudicator is in a much better position to ascertain facts than this Court is on judicial review. In addition, none of the findings listed by the applicant at paragraphs 169 to 187 of his memorandum could be considered as outside the expertise of the Adjudicator. The proper standard of review, therefore, is patent unreasonableness.
[51] In reviewing both the evidence before the Adjudicator and comparing it with the tribunal’s reasons, none of the alleged errors appear on its face as defects. Though this Court does not necessarily agree with every finding of fact it is not the Court’s role to substitute its opinion simply because it differs from that of the Adjudicator; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079.
Infringement of Charter Rights
[52] The applicant makes numerous submissions relating to his Charter rights and the manner in which the Adjudicator allegedly infringed them. This Court need only address, however, the submissions as they relate to subsection 15(1) of the Charter and in particular the applicant’s claim at paragraph 198 of the applicant’s memorandum wherein he writes:
As detailed in Paragraphs 172-173 and 174-182 above, the Decision makes patently wrong and/or unreasonable evaluations of accommodation and hardship. This must have resulted from not using or not properly considering the guidelines as enunciated by the Supreme Court and shown in my Charter presentation, Attachment “R”.
This submission seems to allege that the Adjudicator erred in not finding the actions of the Ministry in breach of subsection 15(1) of the Charter. As the applicant’s circumstances and the Ministry’s actions are fairly unique, this Court does not consider the question of whether the latter’s actions constitute a subsection 15(1) Charter violation to be of much precedential value. The question, therefore, will be analysed as one of mixed law and fact; see Southam, supra.
[53] The applicant contracted chronic fatigue syndrome sometime in 1985. By the summer of 1988 he could no longer work and, after his sick leave credits had been exhausted, his supervisors granted him leave without pay on September 19, 1988. The Treasury Board policy [supra] under which the Ministry officials granted this leave provides (respondent’s record at Tab 30):
When employees are unable to work due to illness or injury and have exhausted their sick leave credits or injury on duty leave, managers must consider granting leave without pay.
Where it is clear that the employee will not be able to return to duty within the foreseeable future, managers must consider granting such leave without pay for a period sufficient to enable the employee to make the necessary personal adjustments and preparations for separation from the Public Service on medical grounds.
Where management is satisfied that there is a good chance the employee will be able to return to duty within a reasonable period of time (the length of which will vary according to the circumstances of the case), leave without pay provides an option to bridge the employment gap. Management must regularly re-examine all such cases to ensure that continuation of leave without pay is warranted by current medical evidence.
Management must decide upon the termination date for such leave without pay within two years of the leave’s commencement, although it can, in some circumstances, be extended to accommodate exceptional cases.
The period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining.
[54] The Ministry inquired about the health of the applicant in 1990 and 1992 and received doctor’s certificates stating that he remained incapacitated. In early 1994, the Ministry asked whether the applicant would be able to return to work or whether he would be seeking a medical retirement. The applicant rejected both options, seeking to remain on leave without pay. The Ministry did not, however, want to leave the applicant on leave without pay indefinitely. A doctor wrote the Ministry on December 12, 1994 stating (respondent’s record at Tab 13):
I, therefore, do not anticipate Mr. Sheuneman [sic] being ready for part-time work at any occupation in the near future, and I fully expect that he will remain so disabled for an indefinite number of years (many) in the future.
After over two years of communications between both parties, the applicant was terminated for cause on November 29, 1996.
[55] At the adjudication hearing, counsel for the Ministry had objected to the written submissions of the applicant alleging a breach of his Charter rights. The submissions contained a history of the treatment of disabled people, the purpose of subsection 15(1) of the Charter some of the jurisprudence relating to it and some legal arguments. The Adjudicator ruled that he had the jurisdiction to consider Charter arguments but, in the end, concluded [at paragraph 106]:
However, the grievor has failed to satisfy me on the evidence that in terminating his employment the employer engaged in any violation of either the CHRA or the Charter.
[56] Neither party made any submissions with regards to the standard of review which this Court, in assessing the applicant’s Charter submissions, must observe. In the interest of not repeating the pragmatic and functional test as found in Pushpanathan, supra and applied above, this Court need only make one comment on the issue. As the interpretation and application of the Charter falls outside of a PSSRA adjudicator’s area of expertise, the question of mixed fact and law calls for a standard of correctness to be observed.
[57] The first issue to review in determining whether subsection 15(1) of the Charter has been breached is whether the applicant has established a prima facie case that he suffered discrimination on a prohibited ground: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. The relevant prohibited ground is the applicant’s disability, that is, his chronic fatigue syndrome. The question is whether he suffered discrimination on this ground.
[58] The policy in question is unlike others which, having been indifferently applied, were found to have an adverse effect on a small number of individuals; see Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536. The policy is flexible enough to accommodate even those whose illness prevents them from returning to work for many years. The policy, therefore, does not discriminate against the applicant.
[59] The applicant’s leave status was discontinued only after eight years, as opposed to two, and only because it was clear that he would remain unable to return to work for the foreseeable future. I cannot imagine a more sympathetic and humane way of implementing a policy concerned with employees on leave. The applicant’s termination resulted only because he was too stubborn to accept that the leave in question is, by its nature, a temporary measure. The actions of departmental employees in implementing the policy, therefore, cannot be characterized as discriminatory. As a result, the applicant’s treatment cannot be considered prima facie discriminatory pursuant to subsection 15(1) of the Charter. The Adjudicator was, therefore, correct on the question of whether there was sufficient evidence to found a claim of discrimination.
[60] The applicant also submits that the lack of any transcript of the hearing breached his subsection 15(1) Charter rights. The applicant alleges that he was discriminated against on the basis of his disability. This submission must fail, however, for the same reason as the above claim of discrimination; there is no evidence that he suffered discrimination as a result of not being able to peruse a transcript of the hearing. On the contrary, the evidence shows that the applicant had sufficient energy and presence of mind not only to address numerous interlocutory matters but to also make detailed critiques of the Adjudicator’s actions throughout the hearing.
Conclusion
[61] The applicant made extensive submissions followed up by some very meticulous arguments. None of his submissions having succeeded, however, the application must be dismissed in its entirety.