FPSLREB Decisions

I. Grievances referred to adjudication

1 Estelle Legault ("the grievor"), who was employed at Human Resources and Development Canada (HRDC or "the employer"), filed a grievance on August 27, 1999, alleging disguised disciplinary action for being placed on leave without pay. This grievance was referred to adjudication on January 16, 2003. On May 18, 2001, Ms. Legault filed a second grievance, this time against a termination of employment effective April 2, 2001. This grievance was referred to adjudication on December 4, 2002.

2 The employer argues that the actions giving rise to the grievances were clearly not disciplinary in nature, as both actions were administrative in nature and done with cause.

3 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 ("the former Act").

II. Summary of the evidence

4 The first witness called by the employer was Chantal Daigle. Ms. Daigle has 18 years of experience in the federal government, 11 of which in the international operations of the Income Security Programs Branch (ISPB). She is currently an acting project manager classified at the PM-5 level. The ISPB deals with various requests pertaining to income security and the Canada Pension Plan from persons who either worked or lived in other countries and with whom Canada has signed international agreements.

5 At the time that Ms. Daigle worked in the ISPB, there were approximately 80 employees and 4 managers. Each group was led by a manager who had between 12 and 20 employees. As a manager, Ms. Daigle's role was to manage the work and the employees in one of these groups.

6 Ms. Legault joined the group that Ms. Daigle was managing at the end of 1999. She was hired as a foreign benefit clerk. At that time, training was on the job, with the assistance of trainers and colleagues, and more difficult cases were assigned as the analysts progressed in learning the work. Ms. Daigle's first impression of Ms. Legault was very positive. She seemed to easily assimilate the information provided, perform her work well and ask relevant questions.

7 At first Ms. Daigle would visit her employees at their desks on a regular basis, a couple of times a day, to ensure that everything was going well. As time went by and as the employees became more comfortable with their work, she reduced the number of visits. She also had an "open door policy" and a "come and see me if you have any problems, I can help" attitude.

8 In the spring of 1999 the situation with respect to Ms. Legault started to deteriorate. Ms. Daigle testified that she was asked to go to the office of Sharon Mahdi, Director, International Operations, where she was informed that Ms. Legault had, for a certain time, been sending inappropriate emails and notes to André Thivierge, Director, Foreign Affairs. At that time, Ms. Mahdi asked her to observe Ms. Legault's behaviour and verify her work to determine if there were any problems.

9 Ms. Daigle testified that in the group there was a technical advisor, Shuley Kachra. Her role was to verify the work done by the analysts and to identify problems. Ms. Daigle asked Ms. Kachra to verify the work done by Ms. Legault for two to three days. At that time an analyst would, on average, close 10 files per day. According to Ms. Daigle, a review of the files revealed that Ms. Legault completed between one and six files per day with a one-third error rate.

10 Ms. Daigle also testified that she noted that Ms. Legault, who had always reported to work appropriately dressed, was showing up at work wearing joggers, running shoes and two or three coats. Her clothes were more or less clean but her fingernails were dirty. This was not customary for Ms. Legault.

11 Ms. Daigle testified that one day while she was talking to Ms. Legault at her desk, she observed that Ms. Legault was eating carrots from a two-pound bag that was open on her desk. The carrots had not been washed. Ms. Legault would take a bite out of a carrot and place the remaining piece at the end of her desk. She continued doing so until there were a good number of pieces of carrots on her desk. On another occasion she was eating cauliflower that was evidently out of date. Ms. Daigle also observed Ms. Legault eating out of a can of beans.

12 Ms. Daigle testified that during a period of 154 days, Ms. Legault worked 105 days and had a number of medical appointments. Her hours of work were 07:00 to 15:00. She also observed that Ms. Legault started coming in late, between 07:30 and 07:40.

13 Ms. Daigle testified that the organization of Ms. Legault's work on her desk was inadequate. She had a number of open files on her desk and had even piled some on top of her wastebasket. Ms. Daigle was concerned that original documents might become lost. Some of those original documents were of foreign origin and might be quite difficult, if not extremely difficult, to replace. She asked Ms. Legault to remove the files from the top of her wastebasket.

14 Ms. Daigle testified that Ms. Legault's interactions with her colleagues during meetings also changed. She became more argumentative, and sometimes would be somewhat "absent" from a meeting by turning her back on her colleagues and looking out the window. Her behaviour would change from meeting to meeting.

15 Ms. Daigle testified that she was present at a meeting between Ms. Mahdi and someone from Staff Relations but she mainly observed. She was present when Ms. Legault was asked to undergo a fitness-to-work assessment by Health Canada. She also prepared part of the documentation submitted to Health Canada (Exhibits 3.4 to 3.9 and 3.11).

16 Ms. Daigle testified that a police officer met with her and other employees that Ms. Legault had named in a letter that she had distributed to approximately 100 mailboxes in a part of Ottawa (Exhibit E-4). The letter, which purported to warn citizens, alleged, among other things, that Ms. Daigle and three other persons, Ms. Mahdi, Christine Albert and Kim Ladouceur, had threatened her and had damaged her property and had beaten her up. Ms. Daigle denied ever being involved in such activities. Ms. Daigle was called to testify in a criminal proceeding involving Ms. Legault related to that letter.

17 Ms. Daigle was questioned as to whether she carries or has ever carried a loaded gun to work. She responded that she never owned or carried a gun, nor did she participate in a break-in at Ms. Legault's residence.

18 In cross-examination, Ms. Daigle could not remember when the 10 files per day standard was established, nor could she remember when the Unit 4 group was created. She indicated that 10 to 12 employees at the CR-4 level worked in the unit. She acknowledged that there were 4000 files backlogged in Unit 4. She added that files had always been counted, and the standard was 10 files per day.

19 Ms. Daigle was shown the unit statistics along with the individual sheets concerning Ms. Legault's work (Exhibit G-1). She acknowledged that these documents were used to compile the data on individual work performance. They indicate the following average output for Ms. Legault:

Week Starting:
February 8, 1999	13 files per day
February 15, 1999	14.5 files per day
February 22, 1999	11.5 files per day
March 22, 1999	8.2 files per day
May 3, 1999	8.8 files per day
May 10, 1999	15 files per day
May 17, 1999	7 files per day
May 24, 1999	12 files per day
June 22, 1999	8 files per day
June 28, 1999	7.2 files per day
July 5, 1999	10.5 files per day
July 12, 1999	10 files per day

20  Ms. Daigle also recognized that the backlog nearly doubled during this period and that it had been a difficult period for the unit.

21 Ms. Daigle was also shown leave applications from Ms. Legault that she had authorized (Exhibit G-2). She acknowledged that Ms. Legault had followed the rules with respect to leave requests. She would call in the morning indicating that she would be absent for the day.

22 Ms. Daigle was questioned on the circumstances of a memorandum (Exhibit G-14) dated July 15, 1999, certifying that in June 1999 three days of leave were provided to Ms. Legault on compassionate grounds that were not charged against her leave credits. Ms. Daigle responded that all that she could remember was that Ms. Legault had indicated that there was a family dispute over a house belonging to her and her deceased fiancé. She indicated that family members had not contacted her and that she did not know whether they had contacted other persons in the department.

23 Ms. Daigle indicated that it was Ms. Mahdi who advised her about the situation in relation to Mr. Thivierge and that it was at Ms. Mahdi's request that she prepared an absenteeism report (Exhibits E-3.4). She confirmed that the comments found in the absenteeism report were hers. The circumstances that led to the letters sent by Ms. Legault in June (Exhibit G-3 and G-4) can be found in the comments section of the absenteeism report with respect to the absence of March 1 to 15, 1999.

24 When questioned on her calculations concerning the number of days that Ms. Legault worked, which appear on the last page of the absenteeism report (Exhibit E-3.4), Ms. Daigle indicated that it was possible that she made a mistake in her calculations. Regarding her comments found in the "Performance/General Behaviour" document (Exhibit E-3.5), Ms. Daigle indicated that, with respect to the 26 files mentioned in the third paragraph, there had been a surplus of work and students had been hired to assist in dealing with the backlog. They were given the easier work.

25 In response to questions from Ms. Legault, Ms. Daigle indicated that on May 20, 1999, she went to see Ms. Legault to reinforce the procedures with respect to files, and she raised the issue of files being put on top of her wastebasket. She conceded that she had not written in her report Ms. Legault's responses to those issues.

26 With respect to her comments on Ms. Legault's general behaviour (Exhibit E-3.5), Ms. Daigle confirmed that there was no dress code in effect, but indicated that it was the change in the way that Ms. Legault dressed that raised concerns. Ms. Daigle indicated that she observed that the joggers that Ms. Legault wore were dirty, as if she had been sitting on dirt. Ms. Legault was also seen in the office wearing several sweaters under her coat.

27 Ms. Daigle did not discuss the matter with Ms. Legault, since she was only asked to observe and note her behaviour. With respect to the carrot incident, Ms. Daigle acknowledged that she and other employees had also eaten carrots. However, the carrots that Ms. Legault was seen eating had not been peeled. She added that she saw Ms. Legault cry on two occasions and that other employees had also reported to her that Ms. Legault had been crying at the office. Ms. Daigle acknowledged that this could have occurred after June 9, 1999. She also confirmed that she asked Ms. Legault how she felt, as reported in the notes of the meetings and discussions with her (Exhibit E-3.8).

28 When questioned on her notes concerning the grievor's work performance (Exhibit E-3.6), Ms. Daigle stated that she could not remember if Ms. Legault had been told that her performance was being monitored. The document was prepared for Ms. Kachra's verification.

29 Ms. Daigle confirmed that Ms. Legault was late on three occasions in late June and in early July 1999, as noted in the "General Behaviour" notes (Exhibit E-3.7), but she could not remember and had not noted any other times that Ms. Legault might have been late. She confirmed that during a meeting Ms. Legault was looking out the window. She could not remember if questions had been directed at Ms. Legault. When questioned by Ms. Legault, Ms. Daigle could not confirm that an employee had grabbed Ms. Legault by the collar of her blouse just prior to the meeting. Ms. Daigle indicated that Ms. Legault would argue with her colleagues but conceded that she had not indicated that in her notes (Exhibit E-3.7).

30 Ms. Daigle was questioned on her notes entitled "Performance and General Behaviour" (Exhibit E-3.11). With respect to Ms. Legault's frequent absences from her office, she indicated that Ms. Legault did not say where she was going, but she could not remember if she had asked her where she was going or how long she would be gone. Asked to explain the comment in the same document on the noticeable mood swings, Ms. Daigle indicated that one moment Ms. Legault would appear in good spirits sitting at her desk, only to be found later crying in the washroom. At times she could be rude, as reported in the notes of the June 29, 1999, encounter (Exhibit E-3.8).

31 With respect to the meeting of June 14, 1999, reported in her notes (Exhibit E-3.11), Ms. Daigle could only remember that at one point Calvell Townley, Staff Relations Advisor, asked that Ms. Legault undergo a health assessment. She could not recall if that occurred on June 15, 1999.

32 In response to questions asked by Ms. Legault, Ms. Daigle confirmed that after June 16, 1999, as reported in her notes (Exhibit E-3.11), Ms. Legault continued to cry, to use her cell phone, to wear the same clothes, etc. The information contained in the last paragraphs of these notes, which pertains to Mr. Thivierge, was provided to her by Ms. Mahdi.

33 In response to questions from Ms. Legault, Ms. Daigle confirmed that she had been questioned by departmental investigators with respect to an allegation that she was carrying a gun. The investigation report was filed in evidence (Exhibit G-5). Ms. Daigle also confirmed the statement that she signed on December 10, 2001 (Exhibit G-6). She confirmed that the letter she referred to in her statement, which was distributed in October 2001, is the document filed as Exhibit E-4. She affirmed that the accusations contained in this letter were false. When questioned by Ms. Legault as to why Ms. Daigle considered the letters that Ms. Legault sent to the Deputy Minister, the Assistant Deputy Minister, the Privacy Commissioner, the Royal Canadian Mounted Police (RCMP), the HRDC Security Office, the Human Rights Commission and to the Ottawa Police as odd behaviour, Ms. Daigle responded that she had no explanation to give. She indicated that she felt scared that her personal security was at stake.

34 In re-examination, Ms. Daigle explained that Ms. Legault's behaviour appeared to her to be outside the norm. She did not always take notes but can distinctly recall Ms. Legault wearing many coats, one on top of the other. She could not, however, specify how many times this occurred.

35 The next witness was Scott Fitzgerald. Mr. Fitzgerald is a detective with the Ottawa Police. He has been with the Ottawa Police for 18 years and is currently assigned to the Arson Section. At the time that he was involved with Ms. Legault's case, he was working in the General Investigation Section.

36 Detective Fitzgerald testified that in October 2001 he was residing on Grenadier Way in Barrhaven and received a letter signed by Ms. Legault (Exhibit E-5). In November 2001, he received a second letter at his home (Exhibit E-6). He opened the letter and was disturbed by its content. It contained issues with respect to public safety and a sexual predator in Barrhaven. He noticed the individual distributing the letter on Grenadier Way. Detective Fitzgerald contacted his office and spoke to Officer Frank Nadaynay, advising him that he was going to confront the individual. Officer Nadaynay indicated that he was on his way.

37 Detective Fitzgerald testified that he met with the individual (Ms. Legault) and after identifying himself indicated that he wanted to speak to her with respect to the content of the letter. Ms. Legault had a bag containing a large number of folded letters. He indicated that he engaged her in a conversation to determine her motives and concerns with respect to the sexual predator. He was attempting to determine if Ms. Legault had legitimate information on potential crimes happening in the community, as well as to determine her mental health state. After Officer Nadaynay arrived, they both went to Ms. Legault's car, which was loaded with numerous papers and clothing. The clutter suggested to him that she had been living in her car. A check was done to see if there were any outstanding warrants against Ms. Legault and a determination was made that, while the content of the letter was disturbing, there was no legal ground to apprehend Ms. Legault. She was cautioned not to distribute the letter further, as the distribution of such a document could constitute a criminal offence. Detective Fitzgerald returned to his residence while Officer Nadaynay continued his investigation.

38 Detective Fitzgerald testified that he was left with the impression that Ms. Legault suffered from either a mental deficiency or a mental disorder. She was a person in need of assistance. He later became aware that a complaint had been filed with the Ottawa Police by the people mentioned in her letters. The file was forwarded to his attention for follow-up.

39 Detective Fitzgerald visited Ms. Legault's workplace and obtained statements from the people mentioned in the letters (Exhibit E-7). They expressed fear, as the incidents were escalating. In his view, there were reasonable grounds to conclude that a criminal harassment offence had been committed. However, before Ms. Legault could be arrested, she filed a complaint with the Ottawa Police about his conduct and that of Officer Nadaynay. As a result, the case was reassigned to Officer Leon Blais as the lead investigator, to avoid an allegation of conflict of interest. Ms. Legault's complaint was later dismissed as unfounded.

40 Detective Fitzgerald testified that Ms. Legault was called to the police station and placed under arrest for mischief and criminal harassment. He monitored the interview conducted by Officer Blais. He recalled that during the course of the interview, Ms. Legault mentioned that over 100 persons were involved in a conspiracy against her. She alleged that she was being followed by persons from the Middle East. As a result, and considering the content of the letter, Ms. Legault was held for a show cause hearing and a determination of her mental health. The information on the alleged offences was filed in evidence (Exhibits E-8 and E-9) as well as the recognizance to keep the peace (Exhibit E-10). She was released from custody with specific conditions not to contact the alleged victims.

41 In cross-examination, Detective Fitzgerald was presented with the court document confirming that the charges were withdrawn since Ms. Legault had signed a peace bond (Exhibit G-8). He recalled that at the time of the trial, the victims did not want to see her found guilty of a criminal offence. What they wished, according to Detective Fitzgerald, was that the harassment cease.

42 The next witness called to testify was Sharon Mahdi. Ms. Mahdi is currently Director of Business Implementation, Processing and Operations, at Service Canada. She joined the public service in March 1966. She was Director of International Affairs, International Benefits and Foreign Affairs (IBFA), at the HRDC. She held that position until the early summer of 2001 when she moved to her present position.

43 Ms. Mahdi testified that the IBFA had two sides: the Foreign Affairs side was responsible for negotiating social security agreements with other countries, and the Operations Side administered those agreements. The operations consisted of exchanging information with foreign countries from clients who were applying for Canadian or foreign benefits. At the time that she became Director, Ms. Mahdi supervised 130 persons with 5 managers. She reported to Ed Tamagno, Director General of the IBFA. She was one of two managers reporting to Mr. Tamagno. The other manager was Mr. Thivierge.

44 Ms. Mahdi recalled that her first interaction with Ms. Legault occurred because Ms. Legault had been referred to her by her manager, Ms. Daigle, who had been questioning her behaviour and her use of sick leave. She had a meeting with Ms. Legault to go over her use of sick leave and to convey to her the requirement to provide a medical certificate. Ms. Mahdi noticed the way she dressed and had seen the carrots and cauliflower pieces on Ms. Legault's desk. There was also an occasion when Ms. Kachra came to her office to advise her that Ms. Legault was in the washroom crying. Ms. Mahdi testified that she went to the washroom to ask Ms. Legault to come out and that she did. Ms. Mahdi indicated that although Ms. Legault was clearly distraught, she refused to explain the situation and returned to her desk.

45 Ms. Mahdi testified that she had more discussions with Ms. Legault as her behaviour escalated. Ms. Legault continued to take more leave, and Ms. Mahdi had to speak with her on a number of occasions to remind her that medical certificates were required. Ms. Legault had also been sending notes to Mr. Thivierge. She had sent him a Valentine's Day card in February 1999. This prompted Mr. Tamagno to convene a meeting with Ms. Mahdi, Mr. Thivierge and a person from Staff Relations to discuss Ms. Legault's case. Ms. Mahdi indicated that it was decided to meet with Ms. Legault to caution her that she had to stop approaching Mr. Thivierge and to determine what could be done to assist her in correcting her behaviour and absenteeism problems.

46 Ms. Mahdi testified that during the meeting Mr. Tamagno did most of the talking. Mr. Thivierge made it clear to Ms. Legault that he had no personal interest in her. Ms. Mahdi indicated that she explained the rules concerning leave. It was a short meeting, as Ms. Legault would not respond to anything. Ms. Mahdi also testified that Ms. Legault was referred to the Employee Assistance Program (EAP) counsellor, Evelyne Girard.

47 Ms. Mahdi testified that following this meeting the grievor's behaviour, absenteeism and productivity issues continued. Other staff began expressing concerns, either directly to her or to Ms. Daigle. A decision was made to hold another meeting with Ms. Legault and to request that she undergo an assessment by Health Canada. Ms. Mahdi indicated that the employer's hope was that she could return to work and function well and that an assessment by Health Canada seemed like the appropriate way to proceed.

48 Ms. Mahdi testified that she and Ms. Daigle prepared the request for the Health Canada assessment that was provided to Mr. Tamagno (Exhibits E-1 to E-3). She recalled being involved in discussions with respect to correspondence sent to Ms. Legault (Exhibits E-14 and E-16). Ms. Mahdi testified that the employer waited an extended period, but Ms. Legault failed to provide certification that she was fit to work.

49 Ms. Mahdi testified that both she and Mr. Tamagno were involved in the recommendation to Assistant Deputy Minister Paul Migus that Ms. Legault's employment be terminated (Exhibit E-17). The letter was copied to Ms. Legault's bargaining agent representative, Barry Auger.

50 Ms. Mahdi further testified that the next thing that occurred was that someone in Barrhaven recognized her name on the letter and called to ask if she was aware of the letter being circulated (Exhibit E-5). The statements contained in the letter were false. The police were called. A second letter was distributed, and at that point the police took statements from the four persons named in it (Exhibit E-7). Ms. Mahdi indicated that she was the contact person but that each individual had prepared his or her own statement individually, and she then gave them to the police officer. Ms. Legault was eventually charged. Ms. Mahdi attended court where the charges were stayed and a peace bond was established for Ms. Legault.

51 Asked if she was made aware of the complaints made by Ms. Legault, Ms. Mahdi testified that there were a number of complaints and indicated that Mr. Tamagno advised her of some of the details of those complaints. Ms. Mahdi indicated that the situation appeared to get worse, as Ms. Legault was making progressively more bizarre complaints with no element of truth to them. Ms. Mahdi was accused of breaking into Ms. Legault's home in Hawkesbury and putting a listening device in her workstation. Ms. Mahdi also indicated that there was a harassment investigation against 11 individuals as a result of Ms. Legault's complaints. An outside firm was hired to do the investigation, and none of the complaints was found to be valid.

52 In cross-examination, Ms. Mahdi did not recognize the document marked as Exhibit G-31, nor was she the source of the information that it contained. Ms. Mahdi confirmed that Ms. Legault's address, contained in a handwritten note dated June 11, 1999 (Exhibit G-9), was given to her by Ms. Legault. Asked about the mention of "Stocker" on the note, Ms. Mahdi indicated that it was the surname of another employee. However, she could not remember why it was there.

53 Ms. Mahdi confirmed that she had written pages 3.2 and 3.3 of Exhibit E-3 and that she had edited pages written by Ms. Daigle in that same document. Asked if this document (Exhibits E-3.1 to E-3.11) was a formal employee appraisal, Ms. Mahdi responded that it was not. She indicated that the document was prepared for the Health Canada assessment. She did not know if a copy of the document was provided to Ms. Legault. She indicated that it would have been Ms. Townley's responsibility to provide a copy to Ms. Legault.

54 Ms. Mahdi could not recall the exact date of the meeting with Ms. Legault. She did recall that the meeting dealt with concerns related to Mr. Thivierge, the use of sick leave and Ms. Legault's behaviour. She did not attempt to contact Ms. Legault at home. She recalled that a registered letter was sent to Ms. Legault's home because Ms. Daigle had been unable to reach her by telephone.

55 In response to questions from Ms. Legault, Ms. Mahdi indicated that it might have been Ms. Ladouceur who advised her that Ms. Legault was crying in the washroom. She reiterated that she had asked Ms. Legault what the problem was but that she did not answer. She also maintained that she asked Ms. Kachra to escort Ms. Legault back to her desk.

56 When questioned on the deactivation of Ms. Legault's security card, which she needed to access the work premises, Ms. Mahdi testified that she was aware that the card had been deactivated in August 1999 because staff had complained that Ms. Legault continued showing up at the office. Ms. Mahdi was not aware of a deactivation in March 1999.

57 When questioned about the meeting regarding Mr. Thivierge with Ms. Legault and Mr. Tamagno, Ms. Mahdi indicated that she believed it was some time after Valentine's Day but could not say exactly when.

58 Ms. Legault asked Ms. Mahdi if she was aware that following the Valentine's Day card incident, her co-workers began saying that she had threatened Mr. Thivierge and his children with a gun. Ms. Mahdi replied that she had never heard such comments and added that the first time that she heard of such comments was on reading the harassment complaint report prepared by Quintet Consulting (Exhibit G-50).

59 Ms. Legault asked Ms. Mahdi if she was aware of the advice that Mr. Donnelly, a staff relations advisor, gave Mr. Thivierge to stop the unwanted affection from Ms. Legault. Ms. Mahdi indicated that she became aware of that advice at the meeting. In response to questions from Ms. Legault, Ms. Mahdi denied that after February 17, 1999, she had stated to employees that Ms. Legault was hysterical. She also denied installing a camera in Ms. Legault's office or in any other office, installing a microphone in Ms. Legault's office, discussing Ms. Legault's behaviour with her co-workers or that she observed her hyperventilating. She testified that at no time did Ms. Daigle report to her that Ms. Legault had physically assaulted her. She denied that a videotape was made of Ms. Legault, an unidentified friend and Mr. Thivierge.

60 Asked by Ms. Legault why she had told the police that Ms. Legault was aggressive towards her manager (Exhibit E-7), Ms. Mahdi replied that Ms. Legault had been uncooperative in taking direction from Ms. Daigle and had stated, "I'm not going to take direction from you!"

61 Ms. Mahdi indicated that this was aggressive behaviour.

62 In response to questions by Ms. Legault, Ms. Mahdi indicated that it was possible that she had asked Ms. Daigle to observe Ms. Legault's behaviour and to monitor her performance.

63 Ms. Mahdi also confirmed that there was a backlog of work in the IBFA and that employees were anxious to get rid of the backlog. She was not aware that employees took sick leave as a result of the backlog.

64 Asked by Ms. Legault if she had been to her home in Hawkesbury, Ms. Mahdi denied ever having been in Hawkesbury. When advised by Ms. Legault that several persons had told her that Ms. Mahdi had been to her home, Ms. Mahdi replied that if that were the case, it would be a fabrication.

65 Ms. Legault presented Ms. Mahdi with an email from Ms. Townley to Mr. Tamagno dated June 2, 1999 (Exhibit G-11). Asked if that email helped her to set the time of the meeting to the end of May 1999, Ms. Mahdi replied that her recollection was that it had taken place closer to Valentine's Day. Ms. Mahdi confirmed that in a sense it was a counselling meeting. Ms. Legault was counselled not to pursue her inappropriate behaviour toward Mr. Thivierge. Asked if Ms. Legault was being accused of sexually harassing Mr. Thivierge, Ms. Mahdi replied that it was part of the message and that her behaviour had to cease. She acknowledged that there had been no investigation nor had she seen the contents of the emails that Ms. Legault had sent to Mr. Thivierge. She indicated that the matter was dealt with through a meeting. She also noted that Mr. Thivierge had not filed a formal complaint.

66 Ms. Legault asked Ms. Mahdi why information about the events with Mr. Thivierge had been communicated to Health Canada (Exhibit E-3.11). Ms. Mahdi replied that the request for an assessment by Health Canada had to contain the reasons for making the request and that those events were part of the reasons. Ms. Mahdi confirmed that she spoke to the EAP counsellor, Ms. Girard, to confirm the times that Ms. Legault had been away from work but that she did not discuss the case with her. She also confirmed that she had never spoken to Ms. Legault's in-laws.

67 Ms. Mahdi confirmed that Ms. Legault did inform the employer that her fiancé was ill and dying and that she was requesting leave. She could not recall if compassionate leave had been granted to her. Ms. Mahdi did not ask Ron Houlahan or Ms. Albert to verify Ms. Legault's medical status. Ms. Mahdi confirmed that she told Quintet Consulting that Ms. Legault was crying because of her fiancé's illness and that she had been referred to an EAP counsellor, as her behaviour at work could not continue.

68 Ms. Mahdi confirmed that she had asked Ms. Daigle to prepare an absenteeism report and to provide a work productivity report. She also indicated that she had consulted with Ms. Townley as to the procedures to be followed to refer a person to Health Canada for an assessment.

69 In response to questions about an advance of sick leave credits, Ms. Mahdi confirmed that on July 14, 1999, she sent an email authorizing that advance, but she could not confirm if Ms. Legault had requested it.

70 When questioned on the exchange that took place at a meeting among Ms. Legault, Ms. Townley, Mr. Auger, Ms. Girard and Ms. Mahdi when the letter (Exhibit G-16) sending Ms. Legault home was given to her, Ms. Mahdi recalled that Ms. Townley explained the package and the reasons for the decision. The message conveyed was that until she was certified as fit to work, Ms. Legault would not be accepted at the workplace. In response to a question concerning Mr. Auger's presence at the meeting, Ms. Mahdi indicated that the meeting was not a disciplinary one. The sole purpose of the meeting was to ensure that Ms. Legault got the care that she needed so that she would be able to return to work.

71 Ms. Mahdi recalled that at the conclusion of the meeting Ms. Legault indicated that she had nothing to say and then left with Mr. Auger.

72 In response to questions, Ms. Mahdi testified she had not personally tried to contact Ms. Legault but had left that task to staff relations and to Ms. Daigle. Ms. Mahdi was aware of the letters sent to Ms. Legault to schedule medical appointments (Exhibits E-13 and E-14). Asked by Ms. Legault if she was aware that Ms. Legault's medical file had been stolen from the office of her personal physician, Dr. Susan Adamowski, Ms. Mahdi indicated she had no knowledge of such a theft.

73 In response to questions from Ms. Legault, Ms. Mahdi denied hiring a private investigator to get information and follow Ms. Legault. Ms. Mahdi also indicated that nothing was true in the complaint that Ms. Legault had sent to the RCMP (Exhibit G-20) and that was copied to the Deputy Minister's office. Ms. Mahdi testified that she found the document insulting and was concerned as to the danger involved because of Ms. Legault's perception of the events.

74 Ms. Legault asked Ms. Mahdi if she had ever been to the River Park Retirement Home where Ms. Legault worked. Ms. Mahdi indicated that she had not. Ms. Legault read from a letter of complaint that she wrote to Jane Stewart, Minister of HRDC (Exhibit G-21), in which she alleged that Ms. Mahdi and Ms. Albert had gone to the director of the retirement home to indicate that she did not have the right to work and live in Ottawa. Ms. Mahdi indicated that the statements attributed to her by Ms. Legault were a complete fabrication.

75 Ms. Legault pursued her cross-examination by asking Ms. Mahdi if she knew Jimmy Lafleur, Claire Poulin, Frank Roger, Tracy Ryan Silverman, Michele Leblanc, Vicky Apperly and Julie Rollwagen. Ms. Legault said that some of those individuals were paid to steal a diskette or to stalk her. Ms. Mahdi denied any knowledge of them or any of the events put forward by Ms. Legault.

76 In response to questions by Ms. Legault, Ms. Mahdi confirmed that she knew Sarah Parson but seriously doubted that Ms. Parson would have called a youth hostel to find out if Ms. Legault was staying there; nor did she ask Ms. Parson to telephone to check. She also confirmed that she knew Steven Mahdi, who is the son of her sister-in-law. However, Ms. Mahdi was not aware that he may have followed Ms. Legault to a youth hostel and commented that the likelihood of that would be zero. Ms. Mahdi also denied hiring Ensign Securities or Securitas to follow Ms. Legault. She was not aware that a person threw a brick at Ms. Legault's car in January 2002. Ms. Mahdi also denied knowing Dan Fisher, Mark Lazarobitz, Dr. John Fedoroff, Bruce Hagel, Barbara Campagno, Tamara Bloom or Joe Burke.

77 Ms. Mahdi denied knowing a person named "Mahdi" who allegedly stole an envelope from the Employment Centre in the Lincoln Fields Shopping Center containing a letter that Ms. Legault was writing to Minister Stewart. She also indicated doubting that someone would have done such a thing.

78 In response to questions from Ms. Legault, Ms. Mahdi indicated that what had been threatening to her was the content of the letters that Ms. Legault had sent to the Minister, to the police and to others. She denied that Ms. Legault's life was endangered at work and was not aware that her life had been endangered outside of work. She denied any claim that she had contacted Ms. Legault's personal physician, Dr. Adamowski. She also denied knowing an individual named "Jaffa." She denied being in contact with Dr. Fedoroff or Nurse Hutchison, who is alleged to work in his office. She denied being in contact with Maura Amoroso, who was assigned by the College of Physicians and Surgeons of Ontario to investigate the complaints filed by Ms. Legault against Dr. Fedoroff. Ms.Mahdi denied saying to Ms. Amoroso that the employer wanted to kill Ms. Legault. Ms. Mahdi also denied knowing or ever saying to a Dr. Paul that Ms. Legault was a paranoid schizophrenic, adding that she was not a doctor and could not diagnose the grievor's condition.

79 Continuing her cross-examination of Ms. Mahdi, Ms. Legault pursued a number of questions pertaining to allegations that several individuals were contacted by her employer to warn them against Ms. Legault or to attempt to obtain information about her. Ms. Mahdi denied any knowledge of the persons contacted or of any departmental activities in that vein.

80 The next witness called by the employer was André Thivierge, a senior manager in the International Policy and Agreements Division, at the Department of Social Development Canada. He has been working in the public service for 36 years, and since 1980 he has been with the International Section, which is responsible for negotiating and administering social security agreements with other countries. He is currently the senior negotiator in the Division. Prior to that, from 1990 to 1999, he was Director of International Operations.

81 The first interaction Mr. Thivierge had with Ms. Legault occurred on December 15, 1998, when he received an email from her. The email asked him if he would like to go for a walk. At first he thought that she had misdirected her email and responded by asking if the message had been sent to him in error. She replied that it was not a mistake and that he had the right to say no and added, "Everyone has their own convictions on life's intricacies" (Exhibit E-18). Mr. Thivierge testified that he thought her reply was rather bizarre. He asked his assistant, Kim Ladouceur, if she knew Ms. Legault. He found out that she worked in the International Operations Division. He did not respond further to the email and "let it go."

82 Mr. Thivierge testified that the next interaction occurred during the first week of January 1999. Ms. Legault came to his office and asked to speak to him in the boardroom. He agreed, as he was curious to know why and was under the assumption that she felt awkward or embarrassed about the email that she had sent him. He followed her into the boardroom and she closed the door. She then moved towards him, tried to kiss him on the cheek and said that she wanted to wish him a Happy New Year. Mr. Thivierge said that under most circumstances this might not seem unusual. However, his reaction was one of surprise and bewilderment. He testified that he felt uncomfortable but did not say anything. He opened the door and left. Upon arriving at his desk he told Ms. Ladouceur what had happened. The next day he received an email (Exhibit E-19) from Ms. Legault in which she said, "I'm sorry I got you in trouble." She also indicated that she understood that a director has responsibilities, and she mentioned that she had to be more careful because people were watching her. Mr. Thivierge testified that he responded by telling her that his relationship with employees was strictly professional and hoped that she would respect that.

83 Mr. Thivierge testified that on Valentine's Day, or soon after, he found a Valentine's Day card from Ms. Legault on his desk. It was accompanied by a small pin in the shape of a heart. He showed it to Ms. Ladouceur because he felt that she should be aware of Ms. Legault's approaches. Ms. Legault had signed the card with an "x" and an "o".

84 Mr. Thivierge received another email from Ms. Legault on February 17, 1999, asking to see him for a few minutes. He responded that he did not want any further communication from her (Exhibit E-20).

85 Four to eight weeks later, probably in April 1999, Ms. Legault came to his office. Mr. Thivierge testified that he stood up and asked her to leave. She then said that she had been to a place in Ontario and had met someone who knew him, and she wanted to tell him about it. Mr. Thivierge indicated that he asked her who the person was but she did not respond; she appeared speechless and frozen. Mr. Thivierge asked her to leave his office since there was nothing they needed to discuss and told her that she had no reason to come to his office.

86 Mr. Thivierge indicated that he became very concerned following those events. Ms. Legault continued her approaches despite his rather strong statements to her. He brought the matter up with Mr. Tamagno and Ms. Mahdi. He was beginning to feel harassed, and they all agreed that if there were a further incident it would have to be addressed in a more formal way. Ms. Townley was also apprised of the situation.

87 Mr. Thivierge testified that when he returned from a business trip to Europe in May or June 1999, he found a card on his desk from Ms. Legault. The card indicated that she missed him and that she sent him kisses (Exhibit G-29). Mr. Thivierge indicated that he was very upset and called Mr. Tamagno and Ms. Mahdi. Mr. Tamagno called a meeting and in the presence of Ms. Mahdi and Mr. Thivierge, Ms. Legault was advised that the department was very concerned about her behaviour and that it would have to cease immediately. She was also advised that there was to be no further communication with Mr. Thivierge. Ms. Legault was asked if she understood the direction that she was given along with the severity of the matter. Mr. Thivierge testified that he recalled that she did not say anything but nodded her head indicating that she understood. She was also advised that she might wish to contact an EAP counsellor (Exhibit E-21).

88 Mr. Thivierge indicated that after the August 24, 1999, meeting he received a voicemail message from Ms. Legault apologizing for being rude to him the previous Monday.

89 Mr. Thivierge testified that during the following months, as Mr. Tamagno was often absent on business trips, he and Ms. Mahdi would act in his position. As a result, he became aware of the issues surrounding Ms. Legault and the allegations that she was making in her correspondence to Mr. Tamagno. He testified that the allegations were extremely shocking. She indicated that he had fathered the child of two employees, and that Ms. Ladouceur was sharing an apartment with him and that he was planning to marry her. There were also allegations that Ms. Albert and Ms. Ladouceur had carried out threats against Ms. Legault because they were jealous of her. These allegations had also been sent to the Deputy Minister. Mr. Thivierge testified that he has never had an intimate relationship with an employee, that he has been happily married for 29 years and that he has two children.

90 Mr. Thivierge indicated that he is friends with Ms. Albert, who has been under his supervision since the mid-1980s. Their families socialize together.

91 Mr. Thivierge stated that the allegations contained in Ms. Legault's complaint (Exhibit E-23, page 10) that he had gone to Hawkesbury to see her on several occasions starting in July 1999, that he had had called to ask her for a date, that he had bought her an engagement ring and that he had told countless people since March 1999 that he was going to marry her were completely untrue and very strange.

92 In cross-examination, Mr. Thivierge indicated that he had given the cards (Exhibits G-27, G-28, and G-29) to a security officer. He denied asking Ms. Kachra to advise Ms. Legault to come and see him. He denied having a conversation with Ms. Albert, which was overheard by Ms. Legault, in which Ms. Albert asked him why he planned to marry Ms. Legault since she was crazy.

93 Mr. Thivierge denied there were rumours circulating in the office that he had been threatened with a gun. He also denied knowing a person by the name of Lewitski who allegedly told Ms. Legault that Mr. Thivierge liked the gift (the small pin) that she had given him. He denied telling a Mr. Klein that he wanted to take her on a trip. In response to questions about the presence of his daughter at the workplace and a conversation involving Ms. Albert about who would become his daughter's stepmother, Mr. Thivierge testified that he was not aware that his daughter had been to the office and that he found those comments absurd. Mr. Thivierge denied speaking to the EAP counsellor, Ms. Girard, and denied being in Hawkesbury on April 15, 2001.

94 Mr. Thivierge testified that he had no knowledge that his mother and her husband had been in Hawkesbury on April 15, 1999, and that they had allegedly spoken to Ms. Legault. He denied knowing any of Ms. Legault's relatives or attempting to speak to them. Mr. Thivierge testified that he did not know the reason that Ms. Legault had been denied access to the workplace in July 1999.

95 Christine Albert was called to testify. Ms. Albert joined the public service in 1981 working at the Department of National Health and Welfare. Since September 1985 she has been working in International Operations. She has worked with Mr. Thivierge for more then 20 years and although they are colleagues, they are also friends. Ms. Albert indicated that their families, children and spouses socialize.

96 Ms. Albert indicated that she had no working relationship with Ms. Legault other than asking her a question from time to time, like many other employees of the directorate. Ms. Albert testified that she did not know who Ms. Legault was or where her office was located until the problems arose.

97 Ms. Albert testified that Mr. Thivierge confided in her that he had received notes, emails and cards from Ms. Legault. She did not hear anything more until December 2000, when Mr. Tamagno received a 50-page letter from Ms. Legault accusing 11 individuals of having done and said all sorts of different things (Exhibit G-23). Ms. Albert was shown parts of that letter, particularly the accusations Ms. Legault had made against her. Ms. Albert testified that none of the allegations was true. Shortly after that letter, Ms. Albert became aware that Ms. Legault had made a number of access to information requests. In October 2001 the letter (Exhibit E-5) that Ms. Legault was distributing in Barrhaven was brought to her attention. Along with her colleagues, she met with the police. Because all of the accusations were completely false, Ms. Albert questioned Ms. Legault's mental state and was concerned for her own personal safety and that of her family. She advised the police of her concerns. She also provided her children with Ms. Legault's description and told them not to open the door to her but instead to call the police. Ms. Legault circulated a second letter that, in addition to the initial accusations, added a statement to the effect that a sexual predator, who might be an associate of the four persons concerned, was circulating in Barrhaven (Exhibit E-6). Ms. Albert recalled that she made a statement to the police (Exhibits 7.5 and 7.6). She later received a subpoena to testify in a court case against Ms. Legault. She testified that she presented herself but that she was not called to testify.

98 Ms. Albert testified that in August 2005 she was contacted by someone from the College of Nurses who was conducting an investigation following a complaint filed by Ms. Legault against a nurse. She was asked if she knew the nurse, to which she replied in the negative.

99 In cross-examination, Ms. Albert was asked if she had discussed her statement made at this hearing with Ms. Daigle or Ms. Mahdi. Ms. Albert testified that she had not. She described her relationship with Ms. Mahdi as a casual one. Asked if she had complained about Ms. Legault to Ms. Mahdi, Ms. Albert indicated that after the letters (Exhibits E-5 and E-6) had surfaced, she did have a discussion about Ms. Legault's delusions and issues of mental health based on the letters' accusations.

100 In response to questions, Ms. Albert denied providing any information to Ms. Townley taken from or referring to Ms. Legault's house in Hawkesbury.

101 Ms. Albert confirmed that she had complained to Ms. Daigle about Ms. Legault after being made aware of the letters that she had distributed in Barrhaven. Ms. Albert stated that her relationship with Ms. Daigle is one of work colleagues.

102 Ms. Albert testified that she and Ms. Ladouceur are good friends and that they have worked together for 10 years.

103 Ms. Albert was asked what Mr. Thivierge had told her about the emails Ms. Legault had sent him. Ms. Albert responded that he said he was concerned, as the emails were inappropriate, and he asked Ms. Legault to stop. He was not interested in her and felt uncomfortable. Ms. Albert indicated that Mr. Thivierge had confided in the employees reporting to him and that they had discussed the matter. Ms. Albert denied spreading rumours around December 1998 that Ms. Legault had harassed Mr. Thivierge.

104 Ms. Albert denied telling co-workers in December 1998 that Ms. Legault was crazy. The mental health issue only came about after she was made aware of the accusations that Ms. Legault was making.

105 Ms. Albert denied being angry with Ms. Legault for asking Mr. Thivierge to go for a walk. She also denied being advised on December 24, 1998, by Mr. Thivierge that he was going to leave his wife and marry Ms. Legault. Ms. Albert also denied complaining to Ms. Mahdi in January 1999 that the training room was a mess and that Ms. Legault was responsible. Asked if in February 1999 Mr. Thivierge had told her that he was afraid of Ms. Legault, Ms. Albert testified that he did not say that to her. Ms. Albert also denied having said to Ms. Daigle that on February 17, 1999, Ms. Legault had threatened Mr. Thivierge and his children with a gun. Ms. Albert testified that she was not aware that Ms. Mahdi had ever installed a camera in Ms. Legault's office to spy on her. She was not aware that Ms. Ladouceur shared an apartment with Mr. Thivierge from March 1999 to December 2000.

106 Ms. Albert denied breaking into Ms. Legault's home in Hawkesbury. She absolutely did not tell Ms. Townley that Ms. Legault's house needed many repairs. She denied taking boxes from Ms. Legault's house, being shown the inside of the house by someone named Guy Bonin and contacting Ms. Legault's neighbours.

107 Ms. Albert denied contacting Ms. Legault's in-laws and telling them that she was crazy and filthy, that she had harassed a director and that she had been sent to Health Canada for an assessment. She also denied telling her in-laws that Ms. Legault had killed her partner by touching him or looking at him. Ms. Albert testified that she never had contact with Ms. Legault's in-laws.

108 Ms. Albert denied hiring a private investigator to follow Ms. Legault 24 hours per day. She also denied contacting someone named Mr. Houlahan to obtain information on Ms. Legault and her partner. She categorically denied telling her co-workers that Ms. Legault could kill them by touching them or by looking at them. She denied calling Staff Relations in July 1999 to obtain information on Ms. Legault.

109 Ms. Albert testified that she saw a copy of the complaint that Ms. Legault made to the Ottawa Police (Exhibit G-25) but could not recall who showed it to her. She was not contacted by the RCMP or the Ottawa Police with respect to this complaint. She was not familiar enough with the complaint to determine whether it was threatening.

110 Ms. Albert testified that the only reason she could see as to why Ms. Legault would have complained about her was her friendship with Mr. Thivierge. She did not feel threatened or angry by the complaint letter that Ms. Legault sent to Mr. Tamagno on December 15, 2000. She was flabbergasted and upset, but not angry.

111 It was Ms. Albert's understanding that the Assistant Deputy Minister had hired a consulting agency to determine if Ms. Legault's complaint could be substantiated. She confirmed that she had indicated in her signed statement of December 7, 2001 (Exhibit E-7.5), that the company was Ensign Securities. When informed by Ms. Legault that the company was called Quintet Consulting, Ms. Albert indicated that she recalled being interviewed by a woman to discuss Ms. Legault's allegations.

112 Ms. Albert could not confirm being made aware of a complaint that Ms. Legault filed with the Privacy Commissioner's Office, nor was she able to confirm that she saw the complaint that Ms. Legault filed with Minister Stewart.

113 Ms. Albert denied hiring Ensign Securities, Burns International Services, Securitas, International or Pinkerton to investigate Ms. Legault. She denied distributing Ms. Legault's picture to friends and asking about her whereabouts.

114 Ms. Legault pursued her cross-examination of Ms. Albert by asking her if she knew or had communicated with the following persons: Elizabeth Voroley, Tracy Ryan Silverson, Michel Leblanc, Michael Tate, Vicky Apperly, Julie Rollwagen, Georgette Scission, Shirley Scott, Dr. Sam Smolkin, Dr. Naomi Groves, Dr. Lenora Tilley, Jane Algire and a number of other individuals Ms. Legault identified by name. Ms. Albert denied knowing them or communicating with them. In some cases Ms. Legault put the proposal to Ms. Albert that she had hired or paid some of these individuals to stalk her, to follow her around, etc. Ms. Albert absolutely denied doing such things. She also denied ever being at the River Park Retirement Home to speak with Mr. Tate, the Director, in the company of Ms. Mahdi and telling him that Ms. Legault was dirty and filthy and should not be able to work in Ottawa. Asked by Ms. Legault if she wanted her to work or live in Ottawa, Ms. Albert indicated that she did not have a problem if Ms. Legault lived or worked in Ottawa; she only hoped that she would get the help that she truly needed.

115 Ms. Albert did acknowledge knowing Ms. Parson, who was Ms. Mahdi's secretary, and Steven Mahdi, who works in the department and is Ms. Mahdi's nephew. Ms. Albert testified that she feared for her personal safety and that of her family. She wanted Ms. Legault's behaviour to stop. She indicated that during a meeting with the police, she as well as Ms. Daigle, Ms. Ladouceur and Ms. Mahdi, mentioned that if Ms. Legault sought medical attention they would not press charges against her. At the end of her cross-examination, Ms. Legault asked Ms. Albert if she had been seeing a psychiatrist or had any mental problems. Ms. Albert denied seeing a psychiatrist or ever having had mental problems.

116 The next witness called to the stand by the employer was Cavell Townley.

117 Ms. Townley has been working in the public service since 1977 and as a staff relations officer since 1991. She was away from the workforce from 1994 to 1999, when she returned to work in the ISPB as a staff relations advisor. She worked there from January to December 1999. She is currently employed with the Public Service Commission.

118 Ms. Townley testified that in March 1999 Ms. Mahdi contacted her about Ms. Legault. Ms. Legault had been absent since February 1999 and had not been heard from since. Ms. Townley advised Ms. Mahdi to contact the compensation officer to see if that person had had contact. Since there had been none, Ms. Townley advised Ms. Mahdi to send a registered letter to Ms. Legault's home to notify her that she was on unauthorized leave and that she had to contact the office. The letter was returned as undeliverable. Around that time the department was seriously considering contacting the police, since Ms. Mahdi saw Ms. Legault outside the building. It was Ms. Townley's understanding that at that time Ms. Legault explained that her absence was due to her fiancé being terminally ill. Shortly after Ms. Legault's return to work, Ms. Mahdi contacted Ms. Townley to indicate that Ms. Legault was having difficulties with her work performance and behaviour. She was emotionally distressed, and her behaviour towards other employees was inappropriate. Absenteeism and performance issues continued. Ms. Townley was also advised that Ms. Legault's workload had been reduced and that complicated files had been reassigned. Ms. Townley testified that at a certain point there were concerns about Ms. Legault's emotional state. Ms. Mahdi contacted Ms. Townley to see if she had the delegated authority to grant Ms. Legault a week of leave with pay for compassionate grounds. Ms. Townley advised Ms. Mahdi that she could grant leave with pay for other reasons. It was Ms. Townley's understanding that the leave was offered to Ms. Legault but that she turned it down. Ms. Mahdi then sought Ms. Townley's help to convince Ms. Legault to accept the offer. Ms. Townley contacted Ms. Girard, the EAP counsellor, and both of them met with Ms. Legault. The intent was to talk to Ms. Legault about how the difficulties in her personal life were affecting her work. To help her arrange some of the matters in her personal life, Ms. Legault was advised that she should consider accepting the offer. Ms. Legault, however, continued to hesitate and told them that they could not control her. During the conversation Ms. Legault had her cell phone at hand. She was apparently waiting for a telephone call from the bank to find out if her request for a mortgage had been approved. Her cell phone rang and from what Ms. Townley understood, a mortgage was refused. At that point, Ms. Legault became distraught and started to cry and both Ms. Girard and Ms. Townley again tried to convince her to accept the offer, which in the end she partially did.

119 Ms. Townley testified that shortly after Ms. Legault's return to work, Ms. Mahdi contacted her to indicate that Ms. Legault's performance and behaviour had not improved and, furthermore, that her personal hygiene was starting to deteriorate. Ms. Townley testified that she happened to see her over a period of consecutive days wearing the same outfit, which was becoming dirtier as each day went by. Ms. Mahdi also called her about the carrot and cauliflower incidents. Given the problems with Ms. Legault's absenteeism, Ms. Townley advised Ms. Mahdi that she should request a fitness-to-work assessment by Health Canada. As the situation continued to deteriorate and employee morale was affected, the question as to whether Ms. Legault should continue to remain in the workplace arose. Ms. Townley indicated that a discussion took place between Ms. Mahdi, Ms. Girard and herself and based on the situation, Ms. Mahdi decided that Ms. Legault should not be in the workplace until the department had confirmation from Health Canada that she was fit to work.

120 Once this decision was made, Ms. Townley testified that she called Barry Auger, Ms. Legault's bargaining agent representative. Ms. Legault was notified in mid-July 1999 that there was going to be a meeting to discuss her fitness to work. In addition to having her bargaining agent representative present, she was also advised that she could have a family member present. During the meeting, Ms. Townley explained to Ms. Legault that given her absenteeism, her behaviour issues and her performance, she could no longer be at the workplace for the time being. It was also explained that although the department was requesting a fitness-to-work assessment, it was voluntary. However, Ms. Legault was told that until she was certified as fit for work, she would not be able to return to the workplace.

121 Ms. Townley added that during the course of this meeting, Ms. Legault was provided with a "Record of Employment," as she was out of sick leave. She was also provided with the necessary forms to request long-term disability benefits. Ms. Legault said that she felt that she was being suspended for disciplinary reasons. Ms. Townley testified that everybody at the meeting explained that this was not the case. Ms. Mahdi indicated that she was looking forward to when Ms. Legault would be able to return to the workplace.

122 Ms. Townley forwarded a request to Health Canada for a fitness-to-work assessment and an appointment was made for Ms. Legault, which she attended. Ms. Townley received a letter from Health Canada informing her that they wanted to refer Ms. Legault to a specialist but that in the meantime they determined her unfit for work. An appointment was made, but Ms. Townley was informed by Health Canada that Ms. Legault did not show up. A second appointment was scheduled, and again Ms. Legault did not show up. They were unable to schedule another appointment.

123 Ms. Townley testified that towards the end of September 1999, Ms. Legault called her with concerns about a conversation that she had had with the doctor at Health Canada. Ms. Townley then wrote a letter to Ms. Legault outlining the options to facilitate her return to work. She asked Ms. Legault to advise her as to what choice she would make.

124 Ms. Townley indicated that although Ms. Legault never replied, she received an email from Mr. Auger indicating that Ms. Legault had advised him that she was going to make an appointment with a medical specialist. Ms. Townley asked him to let her know when the appointment was made. After some time she emailed Mr. Auger to find out if the appointment had taken place. Mr. Auger responded that he had not heard from Ms. Legault.

125 Ms. Townley identified the documents in the package she forwarded to Health Canada (Exhibits E-1, E-2 and E-3.1 to E-3.9). She identified the package given to Ms. Legault on July 15, 1999 (Exhibit G-16), and reviewed the letters that she exchanged with Health Canada (Exhibits E-12 to E-15) concerning the scheduling of appointments for Ms. Legault. Ms. Townley also presented her October 12, 1999, letter, in which she provided Ms. Legault with different options to resolve the situation (Exhibit E-16).

126 In cross-examination by Ms. Legault, Ms. Townley indicated that she would have seen the email dated December 15, 1998 (Exhibit E-18), in February 1999. She testified that Mr. Thivierge presented this email as well as other emails and documents expressing his concerns and asking for her advice on how to deal with the situation. She ensured that he had asked Ms. Legault to stop sending him such material. Prior to the meeting with Ms. Legault, Ms. Townley asked Mr. Thivierge to again repeat his request that Ms. Legault cease sending him such documents and to raise the possibility of a harassment complaint.

127 Ms. Legault pursued her cross-examination of Ms. Townley by asking her if she was aware that there had been rumours that Ms. Legault had threatened Mr. Thivierge and his children with a gun, that Ms. Mahdi had installed a camera in Ms. Legault's office and that Ms. Legault had jumped on Ms. Daigle. Ms. Townley indicated that she was not aware of those incidents.

128 Ms. Townley indicated that she did not help management write the letter dated March 15, 1999, requesting a medical certificate from Ms. Legault (Exhibit G-3). She only saw it at a later date. Ms. Townley was not aware that Ms. Legault's security pass had been deactivated between March 16 and 31, 1999. Ms. Townley was not the author of the note dated April 30, 1999 (Exhibit G-31).

129 Questioned on the May 25, 1999 meeting, where Ms. Legault had been told to cease contacting Mr. Thivierge about which Ms. Townley had been advised through an email (Exhibit G-11) dated June 2, 1999, Ms. Townley indicated that it was her understanding that there had been no formal harassment complaint and that the meeting was a way to attempt to resolve the issue before a need arose to file one.

130 In response to questions from Ms. Legault, Ms. Townley stated that Ms. Mahdi did not tell her that Ms. Legault's in-laws had called her and denied that Ms. Mahdi or her had called Ms. Legault's in-laws. Ms. Townley denied Ms. Legault's claim that at a meeting on June 15, 1999, Ms. Townley said that Ms. Legault's in-laws were worried about her well-being and that they wanted her fiancé to go back to the hospital. Ms. Townley also denied making a number of statements that Ms. Legault attributed to her, among which was an allegation that Ms. Legault was to have been subject to a two-week evaluation that would have started on June 15, 1999.

131 Ms. Townley indicated that the notes in Exhibit G-32 were written during a meeting with Ms. Mahdi where she reviewed what Ms. Mahdi had prepared. She had wanted Ms. Mahdi to be more specific.

132 Responding to questions from Ms. Legault with respect to a meeting on July 14, 1999, Ms. Townley indicated she did not recall the meeting, although she did recognize that it would have made sense to hold a meeting prior to July 15, 1999, to give Ms. Legault the opportunity to have her bargaining agent representative present. She denied telling Ms. Legault that the evaluation period was over and that she would be given the results of the evaluation the next day.

133 With respect to the meeting held on July 15, 1999, Ms. Townley did not recall that Mr. Auger said that the employer's actions were considered as a suspension without pay. She denied saying to Ms. Legault that she would take money from Ms. Legault's bank account. She denied saying to Mr. Auger that no package would be sent to Health Canada, only a referral letter. She also denied that Ms. Mahdi had said to Ms. Legault, "Pick up your stuff and get out of the building immediately." Ms. Townley also denied saying, "Don't get Estelle angry. She may jump on you."

134 Questioned on an undated note to file (Exhibit G-33), Ms. Townley indicated that management was not willing to accept a certificate from Ms. Legault's treating physician and added that Health Canada confirmed that it required a further assessment.

135 Ms. Townley confirmed that Ms. Legault should have been given a copy of the package sent to Health Canada and indicated that it was an administrative oversight.

136 The first witness called by Ms. Legault was Dr. John Fedoroff. Dr. Fedoroff is a forensic psychiatrist at the Royal Ottawa Hospital. He has a license to practice medicine in Ontario. He is a graduate of the University of Saskatoon in medicine and of John Hopkins University in psychiatry.

137 Dr. Fedoroff, in his capacity as a forensic psychiatrist, was asked to assess whether Ms. Legault was fit to stand trial following her arrest and detention. He testified before the Honourable Justice Wright and offered the opinion that she was fit to stand trial. During that hearing a question arose as to whether or not Ms. Legault would meet the criteria for a defence of being not criminally responsible under section 16 of the Criminal Code. The judge ordered that Ms. Legault report to him for an assessment related to that question. Dr. Fedoroff testified that he saw Ms. Legault on March 15, 2002, when she came for the assessment as an outpatient. Dr. Fedoroff indicated that he subsequently wrote a letter to Justice Wright summarizing his opinion on that question (Exhibit G-12).

138 Asked by Ms. Legault who had requested the assessment, Dr. Fedoroff indicated that it was at the request of the Court that he conduct the assessment, although it could have been the Crown Attorney that raised the issue. With respect to the evaluation conducted on March 15, 2002, Dr. Fedoroff testified that the question was whether or not Ms. Legault was suffering from a mental illness that would cause her to be unable to appreciate the nature or consequences of her actions at the time that they occurred, which caused her to be charged. To answer that question, Dr. Fedoroff indicated that he conducted a full psychiatric interview with specific references to that question.

139 Dr. Fedoroff indicated that he asked Ms. Legault if she was experiencing hallucinations. He added that during a psychiatric interview the questions are fairly standard. The main difference in an assessment for section 16 of the Criminal Code is that there are questions specifically regarding the person's mental state at the time of the alleged crime. His recollection is that the incident involved sending letters that others felt were threatening or harassing. He recalled that Ms. Legault had been charged with criminal harassment and mischief. Dr. Fedoroff recognized the letter that he sent to Justice Wright on April 2, 2002 (Exhibit G-12). He also confirmed that the Court proceedings (Exhibit G-14) fitted his recollection of what occurred on March 6, 2002.

140 Dr. Fedoroff denied speaking to the employer and denied that conditions were imposed on Ms. Legault that would require that she only return to work at the IBFA and was not allowed to work anywhere else in the federal government. He denied that he would be the only one to sign transfer requests to other positions, that the employer requested that Ms. Legault be put on medication or that she be treated by him at the Royal Ottawa Hospital. Dr. Fedoroff also denied a number of allegations Ms. Legault made and added that he could not imagine why he would say such things or even have the authority to sign such orders. Dr. Fedoroff indicated that his role was to answer the question related to section 16 of the Criminal Code for the Court and what Ms. Legault mentioned had nothing to do with that question.

141 Dr. Fedoroff testified that Ms. Legault had filed 37 complaints with the College of Physicians and Surgeons of Ontario against him, which ranged from breaking confidentiality to spying on her.

142 The College of Physicians and Surgeons exonerated him. The complaints were also rejected by the Appeal Board.

143 In cross-examination, Dr. Fedoroff indicated that he had not consulted other physicians that might have treated Ms. Legault nor did he consult her medical file. Dr. Fedoroff indicated that the first meeting, at the jailhouse, lasted a half-hour and that the second meeting, in his office, lasted two hours.

144 Dr. Fedoroff was questioned on the comment contained in his April 2, 2002 letter, that if she lodged further complaints against him about conspiracies he would reconsider his opinion and recommend that she undergo a further psychiatric evaluation to determine whether she was suffering from a paranoid delusional disorder. Dr. Fedoroff commented that it is difficult to be sure of a diagnosis after only seeing a person once or twice. He suspected the condition, but he did not have enough information at the time to make a diagnosis.

145 Dr. Fedoroff explained that people who have this psychological condition have delusions based on false beliefs. The beliefs are usually marked by the idea that they are being persecuted or that there is a conspiracy or a plot against them. Usually, they present themselves as reasonably normal. It is only when you start speaking to them about the specific area for which they have a delusion that the condition becomes apparent. At first glance, they will interact normally and will not appear depressed. The condition is treated with psychotic medication and counselling.

146 Dr. Fedoroff testified that the Court is reluctant to call anybody unfit to stand trial. The threshold is high and a person has to meet a number of criteria before being called unfit.

147 The presumption is one of fitness for everyone, which can only be overturned by facts. As a result, most people with a mental illness are fit to stand trial. Similarly, the majority of people with a mental illness do not qualify for a defence under section 16 of the Criminal Code.

148 With respect to paranoid delusion disorder, Dr. Fedoroff indicated that one of the concerns with this condition is that often there is a pattern of escalating violence. If a person has a delusion of being persecuted and that person concludes that the authorities cannot help him or her, there is a risk that the person might take matters into his or her own hands.

149 In re-examination Dr. Fedoroff underlined that he was not making a diagnosis of Ms. Legault today. He was testifying on information that he provided in 2002 and that explained his opinion at that time.

150 Ms. Legault testified on her own behalf. She started working for the ISPB in June 1993 and held several consecutive term positions. In 1998 she was offered an acting CR-4 position as a foreign benefit adjudicator with the IBFA. In March 1999, while in the acting position, she was given an offer of an indeterminate position as a CR-3 in the IBFA. She worked in the IBFA from November 2, 1998, to July 15, 1999. Ms. Kachra was her trainer until she left in July 1999. A letter of offer provided in evidence (Exhibit G-43-1) indicates that she was deployed to another CR-3 position effective June 21, 2000.

151 The acting position Ms. Legault occupied required that she familiarize herself with 33 foreign benefit agreements. She was informed that it would take roughly two years to do so. By July 1999 she had learned 22 of them. Training was given on a continuous basis. Ms. Daigle became her supervisor in December 1998. When she started, Ms. Legault was one of four new foreign benefit adjudicators out of a group totalling 10. By January 1999, three adjudicators had left. In December 1998 a count was made of the total file backlog and it revealed that 5000 files were backlogged. Starting the following January considerable overtime was spent dealing with the backlog. Ms. Legault testified that she worked considerable overtime in January and February.

152 Ms. Legault testified that the email she sent to Mr. Thivierge on December 15, 1998, was not harassment. She indicated that many people would send Mr. Thivierge emails asking him to go for coffee or for a walk. She added that at the time she was the same as everybody else and that it was not the start of a personal relationship. Everybody wanted to go and have coffee with him to discuss jobs, etc. As for the second email she sent him (Exhibit E-19) on January 6, 1999, she testified that she did not mean that she wanted to have a personal relationship with him and added that she understood his response that it was strictly professional.

153 Ms. Legault continued her testimony by indicating that it was a co-worker who told her that Mr. Thivierge wanted a Valentine's Day card, and although she was not sure why because of the email response he had sent her, she sent him a card on February 15, 1999, not knowing it might have been a joke. She indicated that it was the same for the small gift (Exhibit G-28). Ms. Legault added that there was no sexual intent by this small gift and the card (Exhibit G-27). She also sent him an email on February 17, 1999, and was surprised at the response she got from Mr. Thivierge (Exhibit E-20). She testified that on that day she went to the washroom to cry shortly after 13:00. Ms. Kachra followed her into the washroom and told her that Mr. Thivierge wanted to apologize for the email. Ms. Legault indicated that she told Ms. Kachra that she could not come out right away. When Ms. Legault did come out, Ms. Kachra grabbed her hand and told her to come with her. At that point, Ms. Mahdi came into the washroom and saw her being pulled by Ms. Kachra. According to Ms. Legault, Ms. Mahdi followed them and listened to their conversation in the hallway. Ms. Kachra indicated that Mr. Thivierge told her that he wanted to apologize. Ms. Legault added that she felt uncomfortable that Ms. Mahdi was watching them and advised Ms. Kachra that she wanted to go home. Ms. Kachra allowed her to go home, as Ms. Daigle was away on sick leave.

154 Ms. Legault recalled that on February 18, 1999, there was an award presentation. It was held in a large boardroom in the presence of Mr. Tamagno, Ms. Mahdi and approximately 10 co-workers. When Mr. Thivierge came into the room, he asked Ms. Kachra how Ms. Legault was doing; she said that she was okay. At that point, some co-workers said that Ms. Legault had done something to them. Ms. Legault started to hyperventilate but was able to calm down and leave the meeting with the others.

155 Ms. Legault testified that that same afternoon, as a result of a request from Ms. Mahdi to employees, she volunteered to send new applications. On February 24, 1999, when Ms. Daigle returned from sick leave, she reprimanded Ms. Legault for having volunteered for this activity. She also reprimanded her for not following procedures with respect to files. The following day, a colleague, Mr. Gagné, told other colleagues that Ms. Legault had jumped on Ms. Daigle. Ms. Legault believed this started the rumour that she had jumped on Ms. Daigle.

156 Ms. Legault continued her testimony by indicating that on February 26, 1999, at around 10:30, she received a call from a man who said that his name was Lekewsi. He said that he was a friend of Mr. Thivierge and that Mr. Thivierge wanted to marry her. She did not know if it was a joke but nonetheless continued the conversation. She found the conversation upsetting. She was not feeling well because of an ear infection and left work. She was eventually treated for an ear infection and was told to stay home for two weeks. She testified that she called in every day and left messages on Ms. Daigle's voicemail. On March 8, 1999, Ms. Daigle left a message on her answering machine inquiring as to when she would be back at work. She called Ms. Daigle back, who then insisted on having an answer by March 12, 1999. She did call back on March 12, 1999, and although she believed it was 08:00, she did not look at the time. She indicated to Ms. Daigle that she would call her back on March 15, 1999. On March 15, 1999, she went to the hospital emergency room and was told to stay away from work for another month and to see her doctor at the earliest possible time. She forgot to ask for a medical note. She called her doctor, and the earliest she could get an appointment was March 20, 1999. She called Ms. Daigle to inform her and advised her that she would return to work the next day on a half-time basis. At 17:00, she received a letter at home (Exhibit G-3) from Ms. Daigle. It surprised her because she understood that Ms. Daigle had agreed to wait until March 22, 1999, for a medical certificate. The next morning, when she reported to work, she went to see Ms. Daigle and told her that she would only have a medical certificate on March 22, 1999. Ms. Daigle said that was fine. Ms. Legault testified that on March 18, 1999, Ms. Daigle gave her a note (Exhibit G-4). When she showed the note to colleagues, they said that Ms. Daigle had not followed procedures.

157 Ms. Legault indicated that when she returned to work on March 15, 1999, her security access card did not work. She asked Ms. Daigle why and was told that the Director of Personnel had made an error, and she did not know when it would be corrected. However, later she found out that new codes had been given to her colleagues and that Linda Klein told her that nobody was allowed to give her the new codes. Ms. Legault indicated that at the time she thought that this was very strange.

158 On March 22, 1999, Ms. Legault brought the medical certificate. It confirmed that she could only work half days. The agreement reached with Ms. Daigle was that she would work from 07:00 to 13:00 with one break at 10:30. Referring to the absenteeism report (Exhibit E-3.4), Ms. Legault indicated that on May 4, she was authorized to take a half day for a medical appointment. Her absence on May 25 should have been marked as other leave, as she had been authorized by Ms. Mahdi to go home. Her absences on and May 26 and 27 should have been shown as annual leave.

159 Ms. Legault testified that prior to her absence to go to a medical appointment on May 19, 1999, she had advised Ms. Daigle that she would be absent and had been told that it was not necessary to bring in a medical certificate. However, when she reported to work, Ms. Daigle asked for a medical certificate and insisted that she get one faxed right away. Ms. Legault testified that she told her she would bring one in the next day.

160 Ms. Legault continued her testimony, indicating that on the weekend of May 30, 1999, her long time partner, Hendricks Bongers, gave her an engagement ring and asked her to marry him. She had been with him for 10 years. He said that he had been to the doctor and was awaiting a call regarding some test results. He said that he had not been feeling well and that the test results might be bad. She stayed with him, as she was concerned. The doctor called and told him to go to the hospital emergency room right away. On June 7, 1999, Mr. Bongers was admitted. She accompanied him to the hospital. He had to undergo more tests. At the time, he was paralyzed on one side. Specialists told them that he had to undergo a CAT scan and that the situation did not look good. Ms. Legault testified that she went to work on June 8, 1999. After work she went to the hospital. Her partner informed her that he had been told by his doctor that he was terminally ill. Her partner decided he would sign himself out of the hospital and go home. The doctor did not have any objections and as they were leaving, they met one of his sons in the hallway. His son became angry and asked his father to sign two pieces of paper. Her partner could not see what he was signing, and he did not really want to sign them. According to Ms. Legault, the son grabbed her by the throat, and she could not speak because he was strangling her. He brought his other fist to her nose and said to her, "I'm going to rearrange your face. I'm going to kill you, beat you up and kill you." Her partner then said to his son, "I don't want you to touch her, leave her alone." The son pushed his father. Her partner then agreed to sign the papers but asked his son to leave Ms. Legault alone. At that point, the son dropped her and let her go. Nobody else witnessed these events, which occurred in the hospital hallway. After returning to one of the two homes they owned, she received 8 to 10 calls per day from his children who were pleading that he go back to the hospital. Ms. Legault added that her partner was afraid for her life. Her partner was not getting better. On June 14, 1999, she drove him back to the hospital. He was readmitted. His cancer had generalized and he died on July 29, 1999.

161 Ms. Legault testified that she reported to work on June 9, 1999, and went to see Ms. Mahdi. She told her that she had gotten engaged and that her partner was terminally ill. She asked her for special leave and annual leave to cover her absences from May 28 to June 7, 1999. Ms. Mahdi advised her that she did not think Ms. Legault had any sick leave credits left, and she went to get Ms. Daigle. Ms. Daigle came in with her file and confirmed that she had no sick leave or annual leave left. Ms. Legault indicated that she then asked for compassionate leave and was told by Ms. Mahdi that they would look into it. Ms. Legault testified that she stated that she needed to leave right away as she wanted to be with her partner. Ms. Daigle said that if she left right away she would have to bring in a medical certificate. Ms. Legault added that this explained the medical certificate that covered the period from May 28 to June 14, 1999. On June 14, 1999, Ms. Legault telephoned Ms. Daigle and told her she would be back at work the next day.

162 Ms. Legault continued her testimony by indicating that on June 15, 1999, when she returned to work, she was asked to attend a meeting in Ms. Mahdi's office in the presence of Ms. Townley and Ms. Daigle. Ms. Townley indicated that both Ms. Mahdi and Ms. Daigle requested her presence because of the problems that had occurred since March 1999. Both of them had expressed concerns about Ms. Legault's well-being and stated that many of her co-workers had also expressed concerns. Ms. Legault added that Ms. Townley indicated to her that she understood that she told her superiors of her personal situation and, also, that the family of her partner was very worried about him and wanted him to return to the hospital. According to Ms. Legault, Ms. Townley suggested that work may not be the best place for Ms. Legault. She added that her supervisor had been dealing with her since March and was concerned that Ms. Legault was under a lot of stress. This stress had made her do things that were inappropriate, such as sending a love card to Mr. Thivierge, even though he had sent Ms. Legault two emails saying that he did not want her to contact him.

163 According to Ms. Legault, Ms. Townley stated that the department was of the opinion that since she had been found crying, she may need to see a specialist. She also noted that Ms. Legault was seeing an EAP counsellor.

164 According to Ms. Legault, Ms. Townley and Ms. Daigle encouraged her to go on long-term disability. Ms. Legault indicated that she responded that her partner was in the hospital and that there was nothing else she could do other than go to the hospital after work to be with him. Ms. Legault added that she was then told that if she chose to remain at work, she would be subject to a two-week work assessment by Health Canada.

165 Ms. Legault indicated that she wanted to continue working since she had substantial debts to pay, and her productivity had not changed since December 1998. As far as she was concerned, she was producing 10 to 15 files per day with a low error rate. Ms. Legault produced notes that she had prepared of the June 15 meeting (Exhibit G-48).

166 Ms. Legault testified that during the course of the day co-workers told her that Ms. Mahdi had advised them, in the course of a meeting earlier in the day, not to speak to her. They advised Ms. Legault that, because they were aware that her fiancé was dying, they would continue to talk to her even if Ms. Mahdi had instructed them not to. Ms. Legault indicated that at the time she felt that it was weird for Ms. Mahdi to have given such a direction.

167 On June 16, 1999, Ms. Mahdi offered Ms. Legault one week of leave to attend to her personal problems. After Ms. Legault refused, she was called to a meeting with Ms. Girard, the EAP counsellor, and Ms. Townley and encouraged to accept the leave. Ms. Legault indicated that the offer was false pity and that she had been refused compassionate leave the week before when she had needed it. Ms. Legault was finally convinced to take time off. It was during this time that Ms. Mahdi saw her at the bank machine near work. At Ms. Mahdi's request, Ms. Legault provided her home address, and she asked Ms. Mahdi to advise Ms. Daigle that she would be returning to work on June 21, 1999.

168 Ms. Legault testified that when she returned to work on June 21, 1999, there were no files for her to work on. She was concerned because she thought this was the evaluation period, and she asked Ms. Kachra to give her some work. Ms. Kachra tried to obtain work for her from the other clerks, but they said that they were not allowed to give Ms. Legault any files. On the second day, it took a half-hour before Ms. Legault was given files to work on. Ms. Daigle came to see her and indicated that she had not expected her to be at work until the coming Wednesday.

169 Ms. Legault explained that the discrepancies that appear between the number of files found in Exhibits E-3.6 and G-1.37 are because there are some files that were put away.

170 Ms. Legault indicated that during the week of July 5, 1999, all the files had been placed in boxes for all the four sections of the IBFA because a new filing room was being set up. She testified that during the week, none of the clerks in the IBFA received any files and added that on the morning of July 5, 1999, Ms. Daigle came to her with 10 files. All the files related to agreements that she had never worked on before and they were all written in a foreign language. The wait time for a translation was a week and Ms. Daigle knew that none of the files were translated. On the advice of Ms. Kachra, Ms. Legault solicited help from her colleagues who could read the languages, and she was able to adjudicate the files. She was able to complete an average of 10 files per day during that week (Exhibit G-1.43).

171 Ms. Legault recalled an incident when Ms. Ladouceur told her that another co-worker was upset at her because Ms. Legault had looked at the family pictures on her desk. Ms. Ladouceur told her that the employee was afraid that something might happen to her children. Ms. Legault indicated that she had looked at the pictures out of curiosity and that everybody has pictures on their desks and that she did not mean anything by looking at them. Around the same time, the employer advised employees to remove personal belongings from their desks because they were searching for files and were going to go through each desk.

172 Ms. Legault described another incident involving some colleagues. One colleague indicated to another, in the presence of Ms. Legault, that she had gone for coffee after work with Mr. Thivierge and that he had been all over her. The colleague said that she wished that he would ask Ms. Legault to go out with him and finish his relationship with Ms. Legault in order for her to have one with him. This colleague added that she was afraid that Ms. Legault would kill Mr. Thivierge the first time they had sex, because it had been a long time since she had had sex. Colleagues exchanged remarks with respect to how demanding Ms. Legault was in that "department" and exchanged hearsay about her being a sex maniac.

173 A comment was made to the effect that Ms. Daigle might move Ms. Legault to another area, because she was afraid that Ms. Legault might jump on one of her colleagues. Ms. Legault was upset that this kind of talk was taking place about her, and at around 09:00, she asked Ms. Mahdi if she could go home. Ms. Daigle, who was called, asked that she submit a medical certificate if she went home on sick leave. Ms. Legault then left for the day.

174 Ms. Legault recalled another incident that occurred on July 13, 1999. At 08:00 there was to be a unit staff meeting in the boardroom. Just before the meeting, Ms. Legault went to the door of the filing room that is adjacent to the boardroom. There were six students in the filing room working with one of the clerks. One of her colleagues in the unit, Ms. Moreau, walked towards her and pulled her away from the door by the top left sleeve of her blouse. Ms. Moreau told Ms. Legault that she was "not allowed to go in there and talk to these people; you are not allowed to talk to anybody; you don't even know anybody in there; you are supposed to be in the boardroom with the rest of us for the meeting." According to Ms. Legault, Ms. Moreau pulled the top of her blouse and the blouse came out of her skirt. Ms. Legault indicated that the situation was very unpleasant and that she told Ms. Moreau not to touch her and that she would be at the meeting in a minute after saying hello to some friends. Ms. Moreau then turned to the students and said, "Is she bothering you? I can complain to her boss for you?" One student said "hi" while another said, "I don't know her. I don't want to talk to her." Ms. Legault testified that she then went to the meeting in the boardroom. Ms. Legault identified three other employees who would have witnessed the incident and indicated that they did not say anything. Ms. Legault testified that during the course of the meeting that followed, Ms. Daigle stared at her. It made her feel uncomfortable; she looked out the window but listened to the discussion. Ms. Legault indicated that she did not complain about the incident.

175 Ms. Legault pursued her testimony by describing a discussion that took place with Ms. Daigle about the signing of leave forms for the months of May, June and July 1999. The discussion centered on whether she had any sick leave credits left and whether she could cover the remaining absence with annual leave. An agreement was reached, and a request was forwarded to the human resources department. On the following day, Ms. Mahdi called Ms. Legault to her office for a meeting at 10:00. She was not prepared to delay the meeting to allow Ms. Legault to reach Mr. Auger. Ms. Mahdi told her that her annual leave request was being denied and pleaded with her that she go on Employment Insurance. Ms. Mahdi called her back to her office in the afternoon. In the company of Ms. Townley, she told Ms. Legault that her employee evaluation had been completed and that the results would be communicated to her the next day. The suggestion was made to have a family member present to support her. Ms. Legault indicated that she would try to have her bargaining agent representative present.

176 Ms. Legault presented her recollection of the meeting of July 15, 1999, which is found in her notes filed as Exhibit G-49. The notes describe the conversation that took place, which centered on the reasons that she was being sent home until she was certified as fit to work. A suggestion was made that it might only be for two weeks. Ms. Legault mentioned in these notes that Mr. Auger questioned the disciplinary nature of the decision. Ms. Legault claimed that Ms. Townley said, in referring to Ms. Legault and a discussion as to where she should sit, "She may jump on you. Don't do anything to get her angry because she might jump on you." She also attributed to Ms. Townley the following comments: "We have the power to force her to see a doctor. She did things. We can take money from her bank account. We have the power. We prefer if she does what she is told."

177 Following the meeting, Ms. Legault said that she was confused about whether she was being suspended or was on sick leave. Ms. Girard, the EAP counsellor, asked her what she was going to do and to call her the next day to make an appointment. Ms. Legault indicated that she would pack up her things and leave. While she was packing, her colleagues came to see her to indicate that they had been told that she would be away on vacation for two weeks. She indicated that Ms. Kachra was surprised at the outcome because she had given her an excellent work performance evaluation. Ms. Legault testified that she continued to be in contact with Ms. Girard until about 2001 and added that through Ms. Girard, an appointment was made with Dr. Joan Lloyd-Jones, of Health Canada, for August 16, 1999, at 07:45.

178 Ms. Legault testified that her partner died on July 29, 1999, and that the following day she went to the office to get her pay stubs for reasons related to her Employment Insurance application. While at the office, she encountered Ms. Albert and Mr. Thivierge's daughter. Ron Smith arrived and started to talk to Ms. Albert. He asked her where she was going with Mr. Thivierge's daughter, and Ms. Albert responded, "To a very special place with my good friend [Mr. Thivierge's daughter]." Mr. Smith asked her how long she had been such a good friend of Mr. Thivierge's daughter, and added, "She never liked you in the past. You are the one who broke her parents' marriage." Ms. Albert replied, "We are best buddies now." Mr. Smith then commented that he was amazed at how Ms. Albert had managed it, questioned where her husband was and added, "Is he still going to marry Ms. Legault?" Ms. Albert then replied, "He doesn't even like her. He thinks she is crazy and that she is going to hurt him and his children." The conversation described by Ms. Legault continued with Mr. Smith accusing Ms. Albert of being mean toward Ms. Legault and of being jealous of her. Ms. Legault testified that she witnessed this conversation without saying anything. Ms. Legault then went to say hello to colleagues and to advise them that her fiancé had died. She was stopped by a security guard who told her he that he had been instructed to take her security card and to escort her out of the building.

179 Ms. Legault testified that she attended the appointment with Dr. Lloyd-Jones on August 16, 1999. Ms. Legault was surprised at the questions that she was being asked by Dr. Lloyd-Jones and noticed that she was flipping through a document. She asked what it was and found out that it was a report that the employer had sent her. Dr. Lloyd-Jones allowed her to have a look at it, but indicated that she would have to ask the department for a copy of it. Dr. Lloyd-Jones also indicated to Ms. Legault that although she did not seem depressed or on any medication, she would have to send her to see Dr. Peter Ely because of what was in the report. A letter was sent from Dr. Lloyd-Jones to Dr. Ely (Exhibit G-52). The assessment was to be conducted as soon as possible in view of the great financial difficulties that Ms. Legault was facing. Ms. Legault did not know how Dr. Lloyd-Jones knew of her great financial difficulties, as this was not in the report nor had she mentioned anything of that nature.

180 Ms. Legault testified that the next day, she filed a request to get a copy of the report. On August 26, 1999, Larry Dress asked her to follow him into the office at Health Canada to fill out a second request. He then threw the first two requests in the garbage.

181 Ms. Legault then said to him that she wanted to fill out a third request. On August 31, 1999, she received a copy of the report.

182 Ms. Legault testified that on August 26, 1999, Suzanne Bertrand, from Dr. Lloyd-Jones' office, asked her, "Did you get my letter regarding the appointment with Dr. Ely?" (Exhibit G-51). Ms. Legault indicated that she had not. Ms. Legault testified that she was then presented with a copy of the letter setting the appointment (Exhibit E-13) and was asked if she could make it the next day. She responded that she could not and asked that it be rescheduled. Ms. Bertrand told her that it was not a problem and indicated that the department would not be charged because it had been their mistake. The assessment was rescheduled for September 7, 1999.

183 On September 3, 1999, Ms. Legault picked up the letter for the appointment with Dr. Ely. She then went to Dr. Ely's office to reschedule the appointment because it was not a suitable time, as there was a problem with her fiancé's estate. The secretary told her there was no problem in rescheduling since it was more than 48 hours before the appointment. The secretary indicated that she had to call Ms. Bertrand first and that she would call her later with another appointment date. Ms. Legault indicated that she never received a call back. She testified that on September 7, 1999, she went to the appointment. She rang the bell since the door was locked. Dr. Ely came out and asked for her name and identification. He told Ms. Legault that he could not see her that day. She informed Dr. Ely that she had attempted to change the appointment on the preceding Friday but had not received a confirmation from his secretary. He advised her to call Ms. Bertrand back. Ms. Legault indicated she did and was told that they would not schedule another appointment as she had missed the previous two that had been scheduled. She was told that it was not appropriate for her to go to Dr. Ely's office to change the appointment. She should have gone through the department or Health Canada.

184 Ms. Legault also testified that her own physician indicated that she was fit to work. The correspondence requesting her physician's appraisal of her capacity to return to work and her response was put in evidence (Exhibits G-53 and G-54). She was also given a copy of a letter dated September 16, 1999, from Dr. Lloyd-Jones to Ms. Townley (Exhibit E-15) indicating that Dr. Lloyd-Jones was requesting a further assessment.

185 Ms. Legault testified that on September 29, 1999, she made an appointment to view her file in the presence of Mr. Auger and Ms. Townley. Upon reviewing the content of Ms. Townley's letter of September 15, 1999 (Exhibit E-14), Ms. Legault was concerned that the department was considering the cancelled appointments as missed appointments. Ms. Legault testified that she had a discussion with Ms. Townley. She explained that she had gone to Dr. Ely's office on September 7, 1999, to reschedule the appointment. Ms. Legault testified that Ms. Townley said that the department was not prepared to reschedule the appointment. She indicated that Mr. Auger intervened but that Ms. Townley was adamant that the department was not prepared to reschedule another appointment. According to Ms. Legault, a discussion followed on the options that Dr. Lloyd-Jones had presented to her and on allegations that the department had received telephone calls from Ms. Legault's in-laws.

186 Ms. Legault testified that following that meeting she went to see her physician, Dr. Adamowski, and the choice was made for her to see a psychiatrist, Dr. Jean Ouellette. She also received a letter dated October 16, 1999, from Ms. Townley explaining the options available to her (Exhibit E-16). She saw Dr. Ouellette two or three times between October and December 1999. Ms. Legault testified that he told her he would write a report that she was fit to return to work and asked her when the report would be needed.

187 Ms. Legault testified that she had filed a grievance and that the reply to the grievance came the same day that she received the letter dated October 16, 1999, from Ms. Townley. She discussed the matter with Mr. Auger, and they decided to refer the grievance to the second level of the grievance process and to present the report at the second-level hearing. The report cost between $300 and $600, and she was on welfare. Ms. Legault also indicated that Mr. Auger asked to defer the second-level hearing, as she did not have an appointment with the psychiatrist at the time. Because she was on welfare, Ms. Legault decided to seek employment in the private sector.

188 Ms. Legault testified that she accepted a position as a healthcare aid with the Nepean Senior Home Support. At first it was a part-time position, but it eventually became full-time. She worked almost full-time from June 2000 to March 2002. During that period she was renting a room in Gatineau but also stayed at a youth hostel in Ottawa.

189 On December 15, 2000, she filed a complaint with Mr. Tamagno alleging that she was the victim of harassment and discrimination (Exhibit G-23) from employees of the IBFA. Ms. Legault indicated that Quintet Consulting was hired to do an investigation following her complaint against Ms. Townley and 11 other departmental employees. The "Complaint Review Report" was filed as Exhibit G-50.

190 Ms. Legault added that in September 2000 she filed a complaint with the Canadian Human Rights Commission (CHRC) against the employer, but the CHRC's decision was that there was not enough evidence to pursue the complaint. In February 2001, she filed a complaint with the Privacy Commissioner's Office. Again, the result was that her complaint was unfounded. She had also filed complaints with the Ottawa Police (Exhibit G-25) and the RCMP (Exhibit G-20) in November 2000.

191 Ms. Legault went on to describe the several alleged incidents that she referred to in her letter to the RCMP. Included in these allegations was hearsay evidence that she accused Ms. Daigle of bringing a gun to the office, that the employer was spreading rumours that Ms. Legault had threatened Mr. Thivierge and his children, and that she was crazy. The RCMP responded that the allegations were outside of its jurisdiction. Ms. Legault also testified that around the same time, in November 2000, she made a complaint to the Security Office at Place du Portage and indicated that the investigation report was filed as Exhibit G-5.

192 She described, in detail, allegations with respect to a diskette being stolen from her room in Gatineau and how a person she identified as Ms. Ladouceur's boyfriend was involved. She indicated that the diskette was apparently found on a bench in Place Vanier and eventually returned to her. It contained her letters of complaint to different government officials. She filed a complaint with the Gatineau Police on April 26, 2001 (Exhibit G-26). Ms. Legault testified that while at the West End Employment Center she overheard someone named Frank Ranger talking to one of his friends, telling him that he was paid a large sum of money to steal the diskette and that he had had many meetings with the Director of the IBFA. As a result, he was offered a position at the IBFA. Ms. Legault described a situation where persons who had employed her to assist an elderly person started to receive telephone calls advising them that she was crazy and that her car was filthy. She described another situation where two individuals who were working with her at the River Park Retirement Home had been paid to stalk her and that one of them had been offered a PM-2 position at the IBFA.

193 Ms. Legault testified that during the first week of April 2001 she rented a bed at a youth hostel in Ottawa. One day during that week, when she was registering at the desk, Ms. Mahdi's secretary, Ms. Parson, called and talked to the clerk at the front desk. She asked if Ms. Legault was staying there and apparently wanted to know the bed number that had been given to Ms. Legault. She did not leave a message. Ms. Legault added that a few days later, at the hostel, she noticed Steven Mahdi enter the building and ask for her bed number. However, when he saw Ms. Legault, he left. She also recalled another incident involving a person by the name of "Jaffa" who said that he had been paid to find her.

194 Ms. Legault testified that on April 15, 2001, while she was in a store in Hawkesbury, she met three adults and three children. One person introduced herself as Mr. Thivierge's mother. She was accompanied by his sister and brother-in-law along with their three children. Ms. Legault recognized Mr. Thivierge's sister, as she had come to the office from time to time. Mr. Thivierge's mother called Ms. Legault her new daughter and welcomed her into the family. She told Ms. Legault that she no longer wanted Ms. Albert to call at home. Ms. Legault also indicated that she did see Mr. Thivierge on occasion in Hawkesbury but that she did not talk to him.

195 Ms. Legault testified that on April 16, 2001, she went to the River Park Place Retirement Home. As she went by Mr. Tate's office, she saw that Ms. Mahdi and Ms. Albert were sitting in his office. They did not see her. Ms. Legault heard Ms. Mahdi say to Mr. Tate that she was dirty, filthy and crazy.

196 Ms. Legault testified that on May 18, 2001, while she was working at a house on Grenadier Way in Barrhaven washing windows, she heard the neighbour, Julie Rollwagen, talking on the telephone while she was on the porch. Ms. Legault explained that this neighbour was repeating aloud what she was hearing on the telephone, which allowed her to be aware of the conversation. After the neighbour told the person on the telephone "She is here," the other party said, "You're going to say in court that she is a danger to society, that she is dangerous and needs to be put away and institutionalized." When the neighbour became aware that Ms. Legault was listening to the conversation, she went into her house.

197 Ms. Legault also testified about another incident that occurred during the summer of 2001 at the Beechwood Post Office. As she got to the counter to retrieve a registered letter, she was told by the clerk to wait because she was talking on the telephone. The clerk repeated aloud what the person, a woman, on the telephone was saying. The woman stated, "Did she pick up her registered mail?" and, "She threatened me and my children. I am scared of her." The clerk said that it was not a good time to talk and ended the conversation. Ms. Legault assumed that it was Ms. Albert.

198 Ms. Legault testified that starting in March 2001, when she was working on Grenadier Way, she noticed a car parked across from the house. Every time she looked out, there was a man in the car. When she left in her car, he followed her. One day she decided to confront the man, but he drove away. She then followed him to a corner store. He looked nervous. She took his plate number, and he has not followed her since.

199 In March 2001, at the time that she was going to the Office of the Privacy Commissioner, she was followed by a small car bearing the logo of Ensign Security. The same type of incident occurred with a Pinkerton car. A car from Burns International also followed her. When she went into a hotel, the man in the car followed her into the hotel and went to speak to the hotel clerk. Ms. Legault then entered the elevator. Ms. Legault added that when she rented a room at the youth hostel, cars from Burns International, Pinkerton and Ensign Securities were always parked outside.

200 Ms. Legault also testified that during the summer of 1999, while she was on welfare, a neighbour complained to the food bank that she had money, as she was repairing her front porch. She also noticed that the neighbour was following her around. She decided at one point to confront him and walked over to his house. She asked him why he was making complaints about her. He told Ms. Legault that it was to prevent her from marrying this "guy." According to Ms. Legault, this person continues to stalk her.

201 Ms. Legault testified about an incident that occurred at the Employment Centre in the Lincoln Fields Shopping Centre where she was using a computer to prepare her letter of complaint to Minister Stewart. A person who identified himself as Mr. Mahdi said that he had been watching her all morning and wanted the diskette that she was using as he had seen his name on the computer screen. He took the diskette and ran. Ms. Legault never recovered the diskette. Ms. Legault also identified a number of individuals that had received telephone calls asking them to fire her. That is when she decided to distribute the letters in Barrhaven.

202 Ms. Legault testified that she received the letter from Mr. Migus terminating her employment on May 5, 2001 (Exhibit E-17). At that point in time she did not see a need to attempt to meet with the employer on the grievance that she had filed since the employer had made its decision. She decided to wait for the third-level hearing. She did not receive a letter as to when it would be heard. The decision was reached without her presence, and she received the final-level reply on November 22, 2002.

203 Ms. Legault testified that she did not have a psychiatric report at the time that her grievance was heard at the third and final level of the grievance procedure. She indicated that her bargaining agent representative had advised her to work outside the government to prove that she was capable of working. She also indicated that she had received the same advice from Dr. Ouellette. As for the criminal charges filed against her, all were dropped.

204 In cross-examination, Ms. Legault indicated that Dr. Lloyd-Jones had told her that she found her unfit to work because of the report that she had received from Ms. Legault's employer. Ms. Legault commented that the report is not medical evidence but hearsay. She added that she had not been scheduled to meet Dr. Callary on August 27, 1999, but confirmed having an appointment to see Dr. Ely on September 7, 1999. She testified that she went to the appointment but that Dr. Ely would not let her in. She told him that she had gone to his office on September 3, 1999, to change the appointment but he still would not let her in. Ms. Legault confirmed that Dr. Ely's secretary was to call Dr. Lloyd-Jones' secretary and was going to call her back. She did not get a call so she went to the appointment on September 7, 1999. When questioned with respect to Exhibit E-13, Ms. Legault testified that she had called Ms. Bertrand who had told her that she would call the employer. Questioned as to whether she had sent a response to the letter indicating that she had missed the appointment with Dr. Ely (Exhibit E-14), Ms. Legault indicated that she and Mr. Auger spoke to Ms. Townley on September 29, 1999. Ms. Legault added that during this conversation she was told not to go to Dr. Ely's office, that he was a consultant paid by the employer and that she was not allowed to change the appointment or to go there. She testified that she did not know what to do.

205 Ms. Legault testified that the options she was given had been discussed with Ms. Townley and Mr. Auger. She indicated that she had not replied in writing to the letter (Exhibit E-16) from Ms. Townley explaining those options. She indicated that she told Ms. Townley that she would go through her family physician and that she had an appointment scheduled for January 2000. Mr. Auger made Ms. Townley aware of this, and it is confirmed by an email (Exhibit G-34). Ms. Legault indicated that it was on the advice of Mr. Auger that she decided to wait until the second-level hearing to provide a report from the psychiatrist. They were concerned that Health Canada would refuse the report.

206 Questioned if she had ever sent a report from Dr. Ouellette, Ms. Legault testified that when she saw Dr. Ouellette, he told her to go back to work outside of government to be able to prove that she was fit to work. Ms. Legault also indicated that her physician, Dr. Adamowski, said that she was fit to work but that the employer disagreed (Exhibit G-33). She confirmed that Dr. Ouellette never did prepare a report because she did not ask him to. She indicated that she had to prove that she was fit to work by working outside the government. She testified that during the summer of 2000, there were a number of incidents with the employer. She pointed to the fact that she had been harassed and put under surveillance. She indicated that she saw Dr. Ouellette four or five times. She was not in contact with the employer until she received the letter terminating her employment in May 2001. She did not attend the third-level hearing with Mr. Migus.

207 Ms. Legault was presented with the complaints that she had made to the RCMP (Exhibit G-20), Minister Stewart (Exhibit G-21) and Mr. Tamagno (Exhibit G-23). When asked if she still believed that the allegations they contained were true, Ms. Legault testified that she still believed that they were.

208 In re-examination, Ms. Legault indicated that some of the allegations were of a criminal nature and that "a lot of things happened." Her purpose at this hearing was not to prove the complaints. She was not going to prove or disprove what the witnesses had said on the stand.

209 Ms. Legault called Dr. Evelyne Girard to the stand. Dr. Girard indicated that she is now a doctor in clinical psychology but that at the time that she saw Ms. Legault, she was an EAP counsellor at the HRDC. She completed her doctorate in November 2000.

210 Dr. Girard testified that she was approached by the employer to see Ms. Legault. Her role at that time was to assist employees within the EAP, to assist managers, to do preventative training and to provide mediation services and reporting responsibilities.

211 Dr. Girard only vaguely remembered her first meeting with Ms. Legault. She indicated that Ms. Daigle had referred other employees to her. She recalled attending a meeting with Ms. Legault, Ms. Mahdi and Ms. Townley but could not recall exactly what occurred. Dr. Girard indicated that on July 15, 1999, at the request of Ms. Townley, she called Ms. Legault's lawyer to verify the existence of Ms. Legault's partner. Dr. Girard also remembered a meeting in the second floor boardroom where the question of compassionate leave was discussed. She recalled that Ms. Legault indicated that it was not necessary. She did not recall Ms. Townley saying that Ms. Legault's bank account could be seized or that her salary would cease as of that day.

212 Dr. Girard recalled that she had been asked by Ms. Townley to inform Ms. Legault of her appointments. She indicated that she was not asked to evaluate Ms. Legault's fitness to work.

213 Asked to comment on an email exchange involving Mr. Thivierge that was brought to her attention (Exhibit G-30), Dr. Girard testified that she did not recall the email as such but did recall the context. To her this was far removed from the return-to-work problem. Dr. Girard testified that she witnessed a reaction to a death and a request to be absent from work. Dr. Girard was not involved in any of the discussions with respect to Mr. Thivierge. Dr. Girard insisted that her role was not to make a diagnosis but to accompany the employee. She did remember that Ms. Legault had been "barred" from the building. Her understanding was that until she was found fit to work, she would not have access to the work premises.

214 Dr. Girard testified that she continued to meet with Ms. Legault in different locations after July 15, 1999, at her request. Dr. Girard indicated that Ms Legault contacted her to verify the progress of her case.

215 In cross-examination, Dr. Girard confirmed that she was never told not to offer her services to Ms. Legault.

216 Ms. Legault called Dr. Susan Adamowski to testify. Dr. Adamowski is a family physician practicing in Vanier. She testified that Ms. Legault was a patient at the clinic where she has been working since 1979 and that Ms. Legault was her patient from July 1998 to April 2001.

217 Dr. Adamowski testified that during the months of June, July and August 1999, she saw Ms. Legault on 11 different occasions. She did not recall having a conversation with Dr. Lloyd-Jones but did recall an exchange of correspondence (Exhibits G-53 and G-54). Asked to comment on her note of August 31, 1999, indicating that Ms. Legault was fit to return to work, Dr. Adamowski indicated that she was referring to the fact that Ms. Legault had minor medical problems that were not particularly severe. In response to questions from Ms. Legault as to whether anything major would prevent her from returning to work, Dr. Adamowski testified that nothing prevented her from returning to work in terms of a medical problem.

218 In cross-examination, when asked to specify her diagnosis, Dr. Adamowski indicated insomnia, high blood pressure, anxiety, bladder infection and dry eye syndrome. When questioned on the reference to severe psychological stresses, Dr. Adamowski confirmed that she was not offering an opinion on Ms. Legault's psychological state. She did not know Dr. Ouellette but did make the referral to him; it was Ms. Legault that suggested his name. She was not aware of the reason that Ms. Legault stopped seeing her in April 2001. Commenting on her notes (Exhibit G-59), Dr. Adamowski indicated that many of the matters that were brought up by Ms. Legault with respect to her situation were confusing.

219 Dr. Adamowski indicated that she made the referral to Dr. Ouellette. She believed it was necessary to make the referral to allow Ms. Legault to develop coping skills to deal with the stress and harassment both at work and from the family of her deceased fiancé.

220 Ms. Legault called Dr. Jean Ouellette to testify. Dr. Ouellette is a psychiatrist practicing in Hawkesbury, Ontario.

221 Dr. Ouellette testified that he first saw Ms. Legault on December 12, 1999. She wanted an independent evaluation of her capacity to work. He proceeded to complete the evaluation, which turned out to be a long process. He met Ms. Legault on two more occasions, on January 3 and 31, 2000. The evaluation was still incomplete and he did not make a diagnosis. The evaluation was to continue, and for a period of one-and-a-half years appointments were scheduled, but Ms. Legault cancelled them all. The reasons given for the cancellations were that she had started to work and was too busy. He recalled that in early January 2000 she brought him a 103-page document. He asked her to summarize it in two pages, and she presented him with the document at her last appointment that month. Dr. Ouellette testified that after a year and a half, the evaluation was abandoned. Later, in 2003, Ms. Legault returned, requesting an evaluation. He had changed his work, however, and was not available to complete the task, so he referred her elsewhere. Asked by Ms. Legault if he could give her an evaluation right then, Dr. Ouellette declined, indicating that it had been too long since he had last seen her.

222 Ms. Legault asked Dr. Ouellette to indicate his appreciation of her level of functioning without posing a diagnosis when he saw her in late 1999 and early 2000 using the "Global Assessment Functioning Scale" (Exhibit G-60). Dr. Ouellette indicated that this scale was used by psychiatrists to determine an individual's level of functioning.

223 Dr. Ouellette testified that he observed that there were many stressors and that there was a reaction to those stressors. Among those stressors were the death of her fiancé, the conflict with her in-laws and the conflict with her supervisor. She had become engaged at the same time that she became aware that her fiancé was dying. She had looked after him until his death. She had suffered from a kidney infection in February-March 1999. She was also facing a conflict at work and had been forced to leave work. At the time that he was seeing her, Ms. Legault was on welfare, was suffering from diabetes, was using the food bank and she had important financial worries. He also observed symptoms of the effects of the stressors, such as fatigue and lack of energy. She expressed bitterness with respect to the events that had precipitated her leaving work. There was no discouragement and no suicidal ideas or self depreciation and no feelings of culpability. He did not observe a psychosis or a lack of contact with reality. Her memory was good and her discourse coherent. On the scale he would have rated her at 75. Evaluating the preceding months, Dr. Ouellette indicated that she was likely at the 58 level with episodes of panic attacks and hyperventilation. If he removed the stresses at work, he would evaluate her at 65. In his view, the conflict at work contributed to putting her in a more severe state than would have been the case if the conflict had not existed. He based this assessment on the information provided by Ms.Legault during her appointments that lasted an hour and a half each. He could not evaluate her level of functioning today. Dr. Ouellette indicated that at 75 on the scale, a person is considered able to work; below 60, the person has important problems with colleagues.

224 In cross-examination, Dr. Ouellette indicated that prior to coming to testify at this hearing he had reviewed the notes that he had made. He could not bring the file with him as the file belongs to the hospital.

225 Questioned on what remained to be evaluated to complete the assessment, Dr. Ouellette indicated that he needed to understand the motives behind the conflicts that Ms. Legault was experiencing. One question would be: Why had she gone back to her fiancé if she had a difficult relationship with him? The conduct of the evaluation was difficult from the start, as this was the result of a request from the employer, and Ms. Legault was reticent to be open since she feared that the employer might use the results against her. It was difficult to establish a trusting relationship with her. She would say: "You will find problems and they will use them against me." Dr. Ouellette indicated that to be able to conduct an evaluation, the patient has to be honest and sincere. In Ms. Legault's case, she perceived the evaluation as something that could turn against her.

226 Questioned on how he could determine her ability to work faced with this problem from the start, Dr. Ouellette conceded that he could not. He indicated that it was not an insurmountable problem. It would have required more time to complete the assessment. He indicated that the evaluation he had offered earlier in his testimony was based on the observations that he had made at the time and that the observations were incomplete. He would not have presented a written report on the basis of those observations, as the degree of uncertainty was too important, and he could not have assumed the responsibility for a return to work. What remained to be done was to challenge the assertions that Ms. Legault was presenting as facts. When he had attempted to explore those facts, she told him that he was trying to find problems. He was still trying to understand the facts before challenging them.

227 Dr. Ouellette indicated that he was not aware that she had alleged that a superior carried a firearm, that her supervisor had broken into her home or that she had a personal relationship with Mr. Thivierge. He did indicate that he was aware that she was alleging that a camera had been installed to monitor her at work. Dr. Ouellette indicated that his next step would be to explore her motives and try to determine her contact with reality. He indicated that he was not in a position to assess her ability to work but that on the limited information that he had at the time, he would have placed her at 75 on the scale. He admitted that this opinion was formulated without knowing the objective reality.

III. Summary of the arguments

A.  For the employer

228 Counsel for the employer indicated that Ms. Legault has filed two grievances: one alleging that she had been the subject of a disguised disciplinary action by the employer's refusal to allow her to have access to her work and a second one following the termination of her employment.

229 With respect to the first grievance, counsel stated that there was no evidence to conclude that the employer's action was disguised disciplinary action. The employer's decision was based on the need to conduct an assessment to determine if Ms. Legault was fit to work. She had not been involved in any wrongdoing and there was no need to punish her. This is a case relating to the employer's right to require an employee to demonstrate his or her fitness to work. The employer had reasonable grounds to suspect that Ms. Legault was not fit to work. While an employee has the right to refuse to undergo a fitness-to-work assessment by Heath Canada, the employee does so at his or her own peril. An employee will not be able to return to the workplace until he or she has done so or taken other steps to resolve the situation. If the employee has sick leave credits left, the employee will be on sick leave with pay; otherwise, the employee will be placed on sick leave without pay. Counsel argued that based on the evidence there was reasonable grounds for the employer's decision.

230 Counsel argued that the post-termination evidence in this case is useful to determine whether the employer's decisions were reasonable in July 1999 and in April 2001. It is useful in this case that if there are any doubts as to whether the facts put forward by the employer's witnesses are true, one should look at the evidence as to everything that has occurred since the termination. Counsel pointed to the letters distributed in Barrhaven after the termination of employment had occurred and indicated that this evidence was of assistance in determining whether to believe the employer's story or Ms. Legault's.

231 Counsel argued that all of the evidence supports the employer's conclusion as to what happened in 1999. The incidents in the workplace led the employer to doubt Ms. Legault's fitness to be in the workplace.

232 The employer did not and does not know what, if any, illness Ms. Legault suffered or suffers from. All the employer knows is its observation of her behaviour in the workplace. The employer was unsure and unconvinced as to Ms. Legault's fitness to be in the workplace. If, in fact, Ms. Legault did suffer from an illness or a medical issue, the employer did not know if this was a barrier to the performance of her duties or a barrier to her being in the workplace. The purpose of the referral was to have a medical professional who understood the workplace and the duties of the position and who understood the medical issues review the situation and advise the employer as to the fitness of the employee to work or, alternatively, as to what accommodations should be considered.

233 Counsel argued that unless I found that the action of the employer was disciplinary, I had no jurisdiction to hear the case. An adjudicator's jurisdiction is limited under the former Act to a contravention of the collective agreement, a disciplinary action resulting in a suspension or a financial penalty, or a termination of employment. Counsel argued that if I accept jurisdiction, I will have to conclude that the employer imposed discipline for bad behaviour and insubordination by not allowing Ms. Legault to return to work. If the conclusion is that the employer simply requested that the she undergo a fitness assessment and would not accept her in the workplace until she did, then I would have no jurisdiction to hear the matter. Counsel added that, in any event, the facts of the case support the fact that the employer's action was reasonable.

234 As for the termination grievance, counsel argued that for nearly two years Ms. Legault provided no information and essentially did not cooperate in any way to indicate whether she would ever be fit to return to work. She had been given a clear statement by the employer indicating the different options that she had in order to cooperate. None of the options was unreasonable, and Ms. Legault never cooperated in any way. When an employee refuses to cooperate, he or she does so at his or her own peril. If the employment relationship is broken, the employer has no obligation to retain the employee.

235 Counsel added that when an employee is sent home, the employer can only suggest steps that the employee can take to resolve the situation. The employer cannot force an employee to take those steps. If, ultimately, after a reasonable amount of time there is still no reasonable expectation that the employee is fit to return to work, the employer is entitled to sever the employment relationship. Counsel argued that there is a requirement at the time of termination or at adjudication to present evidence that a return to work is possible. In the present case, Ms. Legault has presented no such evidence.

236 Counsel continued by indicating that the employer acted in good faith and on numerous occasions tried to accommodate Ms. Legault. At all times she either refused to cooperate or she viewed the employer's actions as negative. Counsel reviewed her response to the offer of one week of compassionate leave, which she viewed as some sort of negative action.

237 Counsel submitted that the employer acted in good faith and took all reasonable steps to continue the relationship but faced with Ms. Legault's uncooperativeness, it had no other option but termination of employment.

238 Counsel commented on some of the facts of the case. He noted that Ms. Legault's contention that she may have been the subject of a bad joke was not supported by any witnesses or documentary evidence. Her story is unsupported and does not make sense. Counsel noted that the second card that she sent to Mr. Thivierge (Exhibit G-29) was not the result of being pushed by other individuals but the result of her own behaviour. Counsel asked me to review the complaints and numerous documents that Ms. Legault had written (Exhibits G-20, G-21, G-23 to G-26, E-23 and E-4 to E-6) and to compare her beliefs then and now. Counsel pointed to the top of page 10 of the letter to Minister Stewart (Exhibit E-23), where Ms. Legault mentions that Mr. Thivierge asked her to move in with her, saw her in Hawkesbury, called to ask her for a date and told everyone that he was going to marry her. Counsel noted that those claims are repeated in the second paragraph on page 18 of the same document, where it is alleged that Mr. Thivierge was planning a trip with her to Toronto. Counsel noted that this was just one example of the various facts put forward by Ms. Legault in her evidence while she questioned witnesses and in the various complaints that she made. Counsel argued that, ultimately, her own comments suggest that the employer's decision was reasonable.

239 Counsel added that while Ms. Legault's story may have small elements of truth, it is impossible to discern its truth from its fiction. Not one witness was called that corroborated her story. Not one person had any knowledge of the circumstances or incidents that she described as having occurred in the workplace.

240 Counsel argued that it is not surprising that after seven or eight years some of the witnesses had difficulty with their memories of the events. However, their memories were clear with respect to the unusual events that had occurred. What Ms. Legault alleged happened did not occur. Ms. Daigle clearly remembered never bringing a gun to work. The employer's witnesses had no reason to lie, and when they did not remember, they said so.

241 Counsel argued that although Ms. Legault was not happy with the information given to Health Canada, it was the employer's duty to provide as much information as possible so that the decision could be an informed one.

242 Counsel noted that Dr. Adamowski's statement that Ms. Legault was fit to work only referred to her physical fitness. She did not consider the psychological issues that might be an impediment to her fitness to work. Ms. Legault has made very unusual claims, such as alleging that both Ms. Mahdi and Ms. Albert went to her employers to discredit her or that they contacted Dr. Fedoroff, the Court appointed psychiatrist. Not only is there no evidence to support those allegations, they are also highly unusual. There is no corroborating evidence that those events took place.

243 As for the evidence provided by Dr. Ouellette, counsel is of the opinion that Dr. Ouellette was in no position to offer a medical opinion in 1999, in 2000 or even today. Dr. Ouellette's evaluation that it appeared that Ms. Legault was at a rating of 75 on the fitness-to-work scale was only a guess based on limited and insufficient information. Dr. Ouellette admitted that he never completed the evaluation and from the beginning he had concerns about Ms. Legault.

244 Counsel noted that Ms. Legault was told that she could see a physician of her choice (Exhibit E-16) to complete a fitness-to-work assessment but that she failed to complete the process. Without a fitness-to-work assessment, the employer had no grounds on which to determine that she was fit to work. In these circumstances, the employer could only conclude that the employment relationship was severed for reasons of incapacity.

245 Counsel noted that the refusal of an employee to undergo a medical assessment is not a valid reason for disciplinary action. The employer cannot force an employee to undergo such an assessment.

246 Counsel submitted that the employer's action was done under the provisions of the Financial Administration Act (FAA). Counsel relied on the decision in Blackburn v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 42 where the adjudicator ruled that termination of employment was warranted since the grievor had provided no information to allow the employer to conclude that he was fit to work. Counsel argued that the ball was in Ms. Legault's court. She was told of her options and after nearly two years provided no information that would allow the employer to come to any other conclusion. At no time between April 2001 and September 2006 did Ms. Legault provide any information that would confirm that she was fit to work. She did not say that she could obtain a report and request a reconsideration of the decision. This did not occur during the grievance procedure nor was it presented at this hearing. Counsel also referred me to the decision in Beattie v. Treasury Board (National Defence), 2000 PSSRB 12, and Campbell v. Treasury Board (Canadian Radio and Television Commission) PSSRB File No. 166-2-25616 (19960513).

247 Counsel requested that both grievances be dismissed and that the termination of employment be upheld as it was reasonable and consistent with the law. Any reinstatement would raise difficulties for all parties concerned.

B. For the grievor

248 On her own behalf, Ms. Legault argued that the letter confirming the decision to send her home on July 15, 1999, signed by Ms. Townley should have been signed by Ms. Mahdi who was her supervisor and had the delegated authority to act as the employer. Ms. Legault contends that her pay stopped as of July 15, 1999, as indicated in the package that she received from Ms. Townley (Exhibit G-16).

249 Ms. Legault argued that she was the subject of a suspension without pay. She indicated that when Mr. Auger, her bargaining agent representative, asked the employer if it was a suspension, both employer representatives present indicated that it was an administrative measure. She indicated that Mr. Auger insisted that he was supposed to be advised of disciplinary sanctions and indicated that he had not been. Again, the employer representatives denied that it was a suspension. Ms. Legault indicated that the documents show that it was, despite the employer's denial.

250 Ms. Legault indicated that when she met with Ms. Townley and Ms. Mahdi on July 15, 1999, Ms. Daigle had meetings with her co-workers and told them that Ms. Legault was sick and that they were sending her to Health Canada for an assessment. Ms. Legault indicated that this is what her co-workers told her when she went back her office. Ms. Legault added that Mr. Tamagno's secretary went to see her and told her that she had been told that Ms. Legault was going on vacation for two weeks. Ms. Legault argued that the employer did not follow the procedures established by the Treasury Board for suspension and disciplinary action.

251 Ms. Legault argued that this case is one of incapacity in performing the duties of her position as a CR-4 foreign benefits adjudicator, as indicated in the document prepared for the Health Canada assessment (Exhibit E3.2). She noted that Ms. Mahdi wrote that the causes of the referral to Health Canada were high absenteeism, productivity problems and harassment of a director (Mr. Thivierge) with unwelcome messages and cards. Ms. Legault argued that those were the circumstances of the request for a Health Canada assessment and that is what the employer, as a first step, had to prove.

252 The second step for the employer, Ms. Legault argued, was that it had to prove that Ms. Townley wrote two letters to her indicating that she had not attended the appointments set by Health Canada and did not participate in the assessment to establish that she was fit to work.

253 Ms. Legault pointed to pages 6 and 7 of Exhibit G-61, which provide the proper circumstances for an employer to request an evaluation and what is reasonable in such a request. Ms. Legault believes that the employer did not have reasonable grounds to request a medical examination because at that time she was able to work and was not on any assistance program. She had not been off work for six months. On the contrary, she had been at work until July 15, 1999, when she was suspended without pay.

254 Ms. Legault indicated that, according to the leave forms, she took 25 days of sick leave in 9 months and that 11 of those days were between May 28 and June 14, 1999. She indicated that the employer refused to allow her to take special leave and annual leave when her fiancé was dying. She added that on July 15, 1999, she was not working but was placed on advance sick leave as requested by Ms. Mahdi after she was suspended without pay.

255 Ms. Legault argued that there was a severe conflict with Ms. Daigle that resulted in a complaint to Mr. Tamagno on December 15, 2000 (Exhibit G-23). Ms. Legault also mentioned that the FAA grants the employer the power to request that an employee attend a medical assessment but that according to the Treasury Board, the employer did not have this power because it was not a periodic health evaluation standard that was based on a contractual or statutory provision granting the employer such a statutory authority.

256 Ms. Legault added that the case deals with sick leave and according to articles of the law, even in those cases where it applied it was not binding upon the employee to obtain a medical assessment. The employer could only encourage it. She also noted that the collective agreement (Exhibit G-62) does not give the employer such a power. She also noted that both the employee's and the employer's rights are mentioned in Exhibit G-61 (at pages 8 and 10).

257 Ms. Legault indicated that she believes there are many facets to her case and points to the conflict between herself and Ms. Daigle, the conflict between herself and a few co-workers (Ms. Albert, Ms. Ladouceur, Ms. Gagné and Ms. Moreau), the disguised disciplinary action by Ms. Daigle and Ms. Mahdi, the recording of her use of sick leave by both Ms. Mahdi and Ms. Daigle, and the denial of special leave by both Ms. Mahdi and Ms. Daigle on June 9 and July 14, 1999.

258 Ms. Legault argued that the employer has failed to apply its own standards with respect to a fitness-to-work assessment. Relying on Exhibit G-61, she noted that the assessment has to be voluntary, that the employee has to be informed of the reasons for a referral and that it is voluntary. The employer has to show reasonable and proper circumstances to make such a request. Ms. Legault underlined the fact that she was never provided with a copy of the 25-page document (Exhibit E-3) that the employer sent to Health Canada. Ms. Legault contends that Ms. Townley promised to provide her with a copy of the referral letter but that she did not do so. Ms. Legault also contends that Ms. Townley specifically said that no report would be sent to Health Canada, only to find out later that a report was sent on July 14, 1999. Ms. Legault noted that Exhibit E-3.10 indicates that Ms. Townley and Dr. Girard prepared the material. Dr. Girard testified that she wrote Exhibit E-3.11 and that Ms. Mahdi testified that she and Ms. Daigle had written part of the document. Ms. Legault noted that she was only given a copy of the report on September 3, 1999, after being shown the document by Dr. Lloyd-Jones and after she requested a copy from the employer.

259 Ms. Legault argued that between December 1998 and July 15, 1999, there were absolutely no meetings or reports of meetings between her and Ms. Daigle with respect to any of the issues in the two reports. She noted also that Ms. Mahdi could not recall the meeting of June 15, 1999, and confirmed that there was no formal employee performance evaluation report prepared on her performance. She noted that Ms. Townley recalled the meeting and some of the things that had been said. Ms. Legault affirmed that at that meeting on June 15, 1999, Ms. Townley confirmed that the employer would follow all the rules set out in the collective agreement for the evaluation that was going to take place between June 15 and July 14, 1999. She also argued that none of the rules was followed by Ms. Daigle.

260 With respect to the relationship with Ms. Daigle, Ms. Legault argued that it was not the best and that she was not welcomed by all employees, particularly Ms. Albert and Ms. Ladouceur. She argued that searches of her office conducted by Ms. Daigle and by other employees at the request of Ms. Daigle were examples of this conflict and added that Ms. Daigle conducted searches of offices of other co-workers and of personal property. Ms. Legault indicated that during the period from December 1998 to January 1999, Ms. Daigle met Ms. Legault and three other employees to advise them that she had gone through their desks and personal property and that she knew that they had applied for jobs outside the IBFA. Ms. Daigle also told them that she had a right to do searches, that working for the IBFA was different from working in the rest of the public service and that if they wanted to leave, she would help them.

261 Ms. Legault noted that on two or three occasions during the nine-month period she worked in the IBFA, Ms. Daigle had all case files removed from her office to review them. Ms. Legault argued that this resulted in her being left with no work to do. Ms. Legault also pointed to the fact that when she returned from leave on March 15, 1999, her security card had been cancelled. She had to ring the bell to enter the office to work. Ms. Legault argued that her co-workers told her that the reason Ms. Daigle gave them for the cancellation of her security card was that Ms. Legault had gone to a convention in Toronto with Mr. Thivierge.

262 Ms. Legault pointed to another example of the harassment she alleges that she suffered in the workplace. She complained that Ms. Ladouceur circulated rumours that she had threatened Mr. Thivierge and his children with a gun. She also contended that her co-workers told her that Ms. Daigle had advised them that she was not to be given files, and as a result she was not able to do any work.

263 Ms. Legault argued that the usage of leave that was reported to Health Canada was not correct. On the last page of the report (Exhibit E-3.4), it is noted that she only worked 105 of 154 days between November 2, 1998, and June 14, 1999. She indicated that she went through all the leave forms and that she took six days of annual leave and 25.06 days (188 hours) of sick leave. She also pointed to the fact that her initial request for special leave was denied and noted that she complained of that fact in her letter of December 15, 2000, to Mr. Tamagno (Exhibit E-23).

264 Ms. Legault argued that although Ms. Albert denied it in her statement, she did tell six co-workers, in the presence of Ms. Legault, that the employer checked if Ms. Legault was living with her partner and found that she was not. That was the reason that the request for special leave was denied. Ms. Legault noted that Dr. Girard confirmed that she had contacted her partner's lawyer, at Ms. Townley's request, to confirm that her partner existed. Ms. Legault also indicated that on September 29, 1999, Ms. Townley told her and Mr. Auger that she would have to prove that her partner existed. Ms. Legault added that Ms. Townley requested that she provide her car insurance papers to show that she was living with her partner and then added that even if she was, the employer did not want to discuss the matter further.

265 Ms. Legault also pointed to the fact that the medical certificates that she provided to the employer were not given to Health Canada. She added that she was required by Ms. Daigle to produce medical certificates to justify her absences when on June 9, 1999, she was refused special and annual leave to attend to her dying fiancé. Ms. Legault added that a similar event took place on July 9, 1999, when Ms. Daigle insisted that she get a medical certificate when she asked to leave work again to attend to her fiancé.

266 In support of her grievances, Ms. Legault noted that on July 14, 1999, Ms. Mahdi called her into her office to advise her that the pay and benefits clerk had made an error and that her request to use annual leave to cover her absences between May 28 and June 14, 1999, had been denied. As a consequence, she was advised that she owed the department sick leave credits. She pointed to the email from Ms. Mahdi (Exhibit G-15) asking the pay and benefits clerk to advance Ms. Legault 53.87 hours of sick leave. Ms. Legault also noted that even after she was suspended without pay, the documents indicate that she was on sick leave on July 16, 1999.

267 Ms. Legault argued that using 25.06 days of sick leave is not a reasonable basis to be sent for a fitness-to-work assessment. She added that she had not been off for six months, had not been on an EAP program and that she had worked until she was suspended.

268 Ms. Legault argued that with respect to the harassment towards Mr. Thivierge, which the employer identified as one of the two main reasons for sending her for a fitness-to-work assessment, there should have been an investigation. She indicated that according to the rules set out by the Treasury Board, when accusations of harassment are made, there has to be an investigation. There was no investigation and, furthermore, Mr. Thivierge testified that she never harassed him.

269 Ms. Legault noted that one of the reasons used to justify the fitness-to-work assessment was the allegation that she was not capable of doing her work and that her production was significantly lower than the standard (Exhibits E-3.2, E-3.6 and E-3.11). Ms. Legault argued that the productivity reports (Exhibit G-1) for the period from December 15, 1998, to July 14, 1999, show that she was handling 10 to 15 files per day, which was comparable to the standard mentioned by Ms. Daigle and to the productivity of her co-workers. She also pointed out that the report prepared by Ms. Kachra (Exhibit E-6) did not include all the files but only the files that were put away. She further stated that during the formal employee evaluation period she was not given 10 to 15 files per day, but only six or seven. During the last week, she was only given 10 files for the whole week as all the files in the IBFA had been placed in boxes. Furthermore, she contends that the 10 files were all written in a foreign language that she could not understand. While Ms. Daigle knew this, Ms. Legault contends that she insisted that Ms. Legault perform the work based on the information on the files. Ms. Legault noted that according to the report prepared by Ms. Kachra, there were only five minor errors in the 29 files that she looked at.

270 Ms. Legault noted that in Exhibit E-3.11 Ms. Daigle had written that Ms. Legault did not log files and gave as an example the fact that on May 31, 1999, Ms. Daigle found 26 files in Ms. Legault's office. Ms. Legault contends that all of those files had been worked on and were completed. At the time, Ms. Kachra told her to leave the files in her office and that she would take care of them later.

271 With respect to the allegation that her desk was disorganized, Ms. Legault argued that every week the clerks were given 50 files to work on. In addition, they were given, on average, five emergency files per day. They had to handle telephone calls and on May 3, 1999, they each received 160 additional files to work on. During the month of May 1999, all of the employees were complaining that they had too many files.

272 Ms. Legault noted that according to the productivity sheets put in evidence (Exhibit G-1), her productivity was between 10 and 15 files per day and that clearly indicates that she should not have been sent for a fitness-to-work assessment.

273 In response to the allegation in Exhibit E-3.11 that she would leave her workstation without advising Ms. Daigle, Ms. Legault indicated that she had been given advice by a colleague to post a yellow note indicating where she was going and the reason. Ms. Legault argued that she was the only employee that had to do this.

274 With respect to the comments in Exhibit E-3.11 about her behaviour, Ms. Legault argued the following. It is not true that she wore a jogging suit to work. It is also not true that she ate carrots, other than at break times, and maintained that the carrots were peeled and washed. She indicated that Ms. Daigle herself admitted eating carrots at her desk. Ms. Legault added that eating carrots in the workplace is not a big issue. She added that it was also not true that her fingernails were dirty. She explained that her eyes might have appeared to be unfocussed because at that time she had new glasses that were making her eyes sore. As for the incident when she was found crying in the washroom, Ms. Legault recalled that it was Ms. Kachra that came to the washroom to tell her that Mr. Thivierge wanted to apologize to her and asked for Ms. Legault to follow her so that he could apologize. She also recalled asking Ms. Kachra if she could go home as Ms. Daigle was absent during that week. She recalled that this occurred after she had sent the second email to Mr. Thivierge and after he had responded in a rude fashion (Exhibit E-20).

275 With respect to the allegations of mood swings, Ms. Legault noted that during her testimony Ms. Daigle did not provide any details of this alleged behaviour. Ms. Legault contends that the allegations with respect to her being socially isolated were untrue. She indicated that she was friends with all the "old timers" because she was regarded as being "at the same level as them." She went on breaks with them. With respect to the cauliflower incident, Ms. Legault maintained that she had cut the cauliflower into small pieces and put the pieces in a bowl with dressing. It was not all over her desk. She does not recall eating beans out of a can, but does remember that a colleague ate out of a can at lunchtime. She was not rude, but did find the fact that Ms. Daigle required her to produce a medical certificate unwarranted in the circumstances. She was not at work on June 14, as mentioned in the document. She came back to work on June 15 and did accept three of the five days of special leave that she was offered. Ms. Legault contends that she gave her home address when she moved to Hawkesbury in April 1999, and provided it again on June 11, 1999 (Exhibit G-9). She added that after June 16, 1999, she did not cry and used her cell phone only outside of work and that the comments about her clothes were not true. She indicated that the comments with respect to her behaviour at meetings on July 5 and 13, 1999, were also not true.

276 Ms. Legault asserted that had she been given more work, she would have had better results. She added that she was late only three mornings, made up the time each day and mentioned it to Ms. Daigle.

277 Ms. Legault underlined that it was Ms. Mahdi that wrote the paragraph relating to Mr. Thivierge in Exhibit E-3.11. She recalled the telephone call she received at the office on February 26, 1999, by a person who introduced himself as a friend of Mr. Thivierge and who told her that Mr. Thivierge wanted to marry her. She then added that Mr. Thivierge did not see her in Hawkesbury nor did he call her there. She noted that she was wrong in the way that she wrote the paragraph at the top of page 10 of her letter to Minister Stewart dated May 25, 2001. With respect to the comments found on page 18 of the same letter, Ms. Legault indicated that it was a colleague that told her that Mr. Thivierge was planning a trip with her. She added that she should not have written that it was Mr. Thivierge who made these comments to her but should have indicated that they came from colleagues.

278 Ms. Legault does not believe that she harassed Mr. Thivierge and indicated that if it was perceived in that fashion, there should have been an investigation. Ms. Mahdi made statements to Health Canada without an investigation of the incidents ever taking place.

279 Ms. Legault argued that she should have been given a copy of the report that accompanied the request for the fitness-to-work assessment. By not providing her with a copy of the report, the employer failed to apply the Treasury Board policy on harassment. She added that she was not made aware of the request to send her to a psychologist. Ms. Legault added that Dr. Lloyd-Jones told her that if Dr. Adamowski found her fit to work, they could not send her to Dr. Ely. She pointed to the fact that on August 31, 1999, Dr. Adamowski said that she was fit to work (Exhibit G-54). She contends that she changed the appointment on September 3, 1999, with Dr. Ely's secretary who confirmed that it was not a problem. She noted that, nevertheless, she went to Dr. Ely's office on September 3, 1999, but he refused to see her.

280 Ms. Legault argued that on September 29, 1999, when she met with Ms. Townley in the company of Mr. Auger, she was given 18 conditions for her return to work and was told that she would have to work with the employees who had complained against her to the police, which had resulted in criminal charges being laid against her.

281 Ms. Legault pointed to the fact that following the letter from Ms. Townley dated October 12, 1999 (Exhibit E-16), she arranged to see a psychiatrist, Dr. Ouellette, and she saw him on three occasions. Ms. Legault indicated that after three consultations with Dr. Ouellette, she told him that her bargaining agent representative thought that it would be better for her to find employment outside the government. She did so and worked full-time for two years at the Nepean Senior Home Support. She worked seven days per week and was on call 24 hours per day. She added that starting in 2000, it came to her attention that Ms. Mahdi and three co-workers had approached several of her employers and were asking them to fire her. They were telling her employers that she was crazy, dirty and filthy. Ms. Legault indicated that this upset her, as many of the persons she was working with were quite elderly. Ms. Legault indicated that, to her understanding, some of these seniors received telephone calls, while others were approached individually, and in some cases they were approached by neighbours. They were all being asked that she be fired. Ms. Legault indicated that she gave an example to police that can be found in Exhibit G-7.

282 Ms. Legault indicated that she was not present at the second-level hearing of the grievance that she filed in August 1999. She indicated having received advice from Mr. Auger not to present any documents unless he was present. The grievance response was dated April 2, 2001. She indicated that she did receive the termination letter (Exhibit E-17) on May 5, 2001.

283 Ms. Legault submitted that Ms. Mahdi and Ms. Albert went to see Mr. Tate, one of her employers, on April 16, 2001, and told him that she was dirty, filthy and crazy and that they did not want her living and working in Ottawa. She was standing at the door of Mr. Tate's office and listened to the conversation. She contends that Mr. Tate commented to Ms. Mahdi and to Ms. Albert that they were defaming her. Ms. Legault argued that this was the reason she filed complaints with the Ottawa Police (Exhibit G-5), the RCMP (Exhibit G-20) and with Minister Stewart (Exhibit G-21).

284 Ms. Legault indicated that both of her grievances were heard at the final level of the grievance procedure on November 22, 2001, and that she did not have the opportunity to attend the hearing. Although she had requested to be present, Ms. Legault stated that the hearing proceeded without her.

285 Ms. Legault argued that the criminal charges laid against her on March 5, 2002, by Detective Fitzgerald, on behalf of Ms. Mahdi, Ms. Albert, Ms. Ladouceur and Ms. Daigle, were all dropped on November 12, 2003.

286 Ms. Legault stated that Dr. Fedoroff told her at their meeting on March 15, 2002, that Ms. Mahdi had approached him and, as a result, he put forward to Ms. Legault the same conditions for her return to work as Ms. Townley had previously communicated to her. Ms. Legault claims that she heard Dr. Fedoroff say to another doctor that he wanted to see Ms. Legault in a bathing suit.

287 Ms. Legault argued that the employer has the burden of proof to establish just cause for termination of employment and that it is important for the employer in such a case to document in the employee's personal file his or her failings. The employer is required to issue written warnings and provide opportunities to correct the failings before it considers terminating the employment of an employee.

288 Ms. Legault argued that the employer did not provide her with a written warning of any kind. The employer did provide a report, but it lacks objectivity; it is much too subjective. The employer showed bad faith by failing to treat her with honesty, dignity and compassion. She was not provided with copies of the correspondence sent to Health Canada. The employer acted in a dishonest fashion.

289 Ms. Legault indicated that there was no accommodation made that would have assisted her in this difficult period. None of her work was distributed to other colleagues, and the only time that she was given less work was when the employer conducted a formal evaluation of her performance. Furthermore, Ms. Kachra was asked to do a review of all of Ms. Legault's work for the full month. Ms. Legault noted that whenever she was late she made up the time. When she went to see the EAP counsellor it was on her own time.

290 Ms. Legault argued that with respect to the issue of credibility between her and Ms. Mahdi, I should note that Ms. Mahdi denied speaking to Mr. Tate and denied speaking to her cousin. Ms. Legault conceded that neither Mr. Tate nor her cousin testified but argued that I should nonetheless prefer her statement.

291 Ms. Legault stated that the medical evidence presented at this hearing by Dr. Fedoroff answers the question as to whether or not she suffers from a mental illness.

292 Ms. Legault argued that the fact that Ms. Townley asked Ms. Girard, the EAP counsellor, to verify with her partner's lawyer that her partner really existed was harassment on the part of the employer. She noted that Ms. Mahdi denied speaking to the lawyer either directly or indirectly.

293 Ms. Legault argued that she did provide the employer with the report (Exhibit G-54) prepared by Dr. Adamowski indicating that she was fit to work. At the time, Dr. Adamowski had been her doctor for four years. She added that family physicians are trained to detect and treat mental illness. Ms. Legault noted the testimony of Dr. Adamowski, who indicated that in 1999 her case was simple. She received psychotherapy every week from July to September 1999. The stressors that affected her life had been resolved by August 31, 1999. At her request, Dr. Adamowski referred her to a number of psychiatrists to prove that she was capable of returning to work.

294 Ms. Legault concluded her arguments by saying that she saw Dr. Ouellette in Hawkesbury on three occasions. She indicated that for one-and-a-half years she worked in Ottawa and was not able to attend her appointments with Dr. Ouellette. Ms. Legault contends that although he was not able to complete his evaluation, Dr. Ouellette identified the stressors that had affected her and gave her a rating of 75 on the scale of fitness to work (Exhibit G-60).

C. Rebuttal

295 In rebuttal, counsel for the employer noted that the employer readily admits that the information was not sent to Ms. Legault initially but pointed to the fact that this information was given to her by Dr. Lloyd-Jones. Although the information should have been given at the time that it was sent to Dr. Lloyd-Jones, Dr. Lloyd-Jones corrected the situation by showing the document to Ms. Legault. This does not point to bad faith.

296 Counsel argued that the background document titled "Fitness to Work Evaluation" (Exhibit G-61) is not an employer policy. It is a background document to assist in determining what circumstances are reasonable to request a fitness-to-work assessment. In Ms. Legault's situation the employer was not at that time terminating her employment. The employer had taken numerous steps to give Ms. Legault the opportunity to obtain a fitness-to-work assessment and as the evidence shows, Ms. Legault understood this request and did take the necessary steps to obtain such an assessment. However, Ms. Legault never completed the process. The only medical evidence available to the employer was the Health Canada conclusion found in Dr Lloyd-Jones' letter of August 17, 1999 (Exhibit E-12). Ms. Legault's failure to proceed with the medical assessment eventually led to further difficulties. Dr. Ouellette could not offer an opinion that would overturn the conclusion reached by Dr. Lloyd-Jones.

297 Counsel noted that in her arguments Ms. Legault discussed a number of facts that differed from her initial testimony. Her story was beginning to change. The original story raised numerous questions with respect to her fitness to be in the workplace.

298 With respect to performance, counsel argued that the documents submitted by Ms. Legault do not provide the adjudicator with evidence of her performance. Counsel noted that the documents prepared by the employer were sufficiently clear and that I would have to find that the employer acted in bad faith to set them aside. Counsel added that the employer was not looking at each issue independently.

299 On the issue of absenteeism, Ms. Legault recognized that she was absent for 25 days on sick leave. Although it is not extreme, it is a substantial amount of time. There was enough cause for the employer to be concerned as to whether or not she should be present in the workplace. For example, Ms. Daigle's opinion of Ms. Legault's behaviour while eating carrots was so unusual as to raise concerns. All the issues that occurred led to valid concerns that needed to be addressed. On the issue of credibility, counsel noted that there was no evidence to indicate that Ms. Daigle would have any reason to make up the story. All the evidence, with the exception of Ms. Legault's, points in the same direction. The only contradictory evidence comes from Ms. Legault's own statements.

300 Counsel argued that the employer had sufficient reasons to believe that Ms. Legault was not fit to be in the workplace. That was why the employer asked for a fitness-to-work medical assessment. From September 1999 to September 2006 Ms. Legault failed to provide any report confirming that she was fit to work. Dr. Fedoroff's assessment dealt with a completely different standard and, in fact, it denotes preliminary concerns with Ms. Legault's mental health.

301 As a last comment, Ms. Legault added that the issue surrounding Mr. Thivierge appears to have taken a substantial place in the current proceedings. She questioned its importance since there was only one meeting with her where this concern was raised. She drew attention to the second paragraph of page 18 of her complaint to Minister Stewart (Exhibit E-23) where she notes that Mr. Thivierge told her that he would have coffee with her if she worked in another section.

IV. Reasons

302 In this case involving the adjudication of two grievances by a self-represented grievor whose employment has been terminated, more latitude was allowed to Ms. Legault to present and argue her case. Evidence was not always tendered according to the rules, and some evidence found its way into her arguments despite warnings to that effect at the initial stage of the hearing. A large part of the evidence dealt with events that took place after the termination of her employment. At times the questions posed by Ms. Legault to the witnesses appeared to me, to say the least, far-fetched, if not utterly surprising, and I can understand some of the witnesses' reactions to the questions or assertions put to them. Her propensity to make such allegations may also explain some of the witnesses' difficulties with memory. Ms. Legault's accounts of some of the events that she alleged occurred are extremely difficult to accept, although I am convinced that she herself believes them to be true. During the whole course of the proceedings Ms. Legault was respectful and cooperative and presented, in a sufficiently organized fashion, what she believed were the salient points in support of her grievances. I am still left with a general sense that an adjudicator has little tools to determine if a grievor, whose perception of reality is questionable, is able to represent himself or herself, particularly when the consequences of a failure to present a convincing case can result in a confirmation of a termination of employment.

303 The first grievance filed by Ms. Legault alleges that the decision to place her on leave without pay is a disguised disciplinary action that is without cause, unwarranted and unjust. The employer, on the other hand, considers this an appropriate administrative action in light of the behaviour, absenteeism and productivity that Ms. Legault showed during the six preceding months.

304 Although there are some weaknesses in the employer's evidence in support of its case, particularly surrounding the issue of productivity, there is no doubt in my mind that Ms. Legault demonstrated behaviour that raised a number of valid concerns with respect to her fitness to be in the workplace. Her absenteeism, her beliefs and behaviour towards Mr. Thivierge, her crying at work, her clothes and her eating habits all point in the same direction. Her own recollection of the events raises serious concerns as to her well-being then and now. Although taken separately each incident may appear to be minor, together they tend to point to deteriorating health. I have been unable to identify any evidence related to this grievance that would allow me to conclude that she was disciplined by the employer or that her supervisors and other departmental officers acted in bad faith. Had she complied with the fitness-to-work assessment, the period away from work may have been much shorter and she would have likely received the treatment required for her condition. Unfortunately, such was not the case and her situation deteriorated further, as the evidence showed. While it would have been better for the employer to provide Ms. Legault with its reasons for requesting a fitness-to-work assessment, this fact in itself does not convince me that the employer's decision was disciplinary in nature. Therefore, I conclude that I have no jurisdiction to deal with this grievance.

305 The second grievance followed the employer's decision to terminate Ms. Legault's employment, which was communicated to her in a letter dated April 2, 2001. This situation is much more problematic.

306 The evidence reveals that after the initial problems experienced with her attending the fitness-to-work assessment appointments made through Health Canada, Ms. Townley clearly set out to Ms. Legault the conditions upon which she could return to work. These conditions were communicated to her in writing on October 12, 1999. Nowhere in this letter or in any of the preceding correspondence is there any mention that the employer intended to sever the employment relationship if she failed to obtain such an assessment.

307 Ms. Legault appears to have understood the options communicated to her, as she proceeded to undertake an assessment, although somewhat reluctantly, conducted by Dr. Ouellette, a psychiatrist practicing in Hawkesbury. Unfortunately, she chose not to complete the assessment because, as she explained, she worked in Ottawa.

308 By the fall of 2000, it would appear that her condition deteriorated further as she filed complaints with the Ottawa Police (Exhibit G-25) and the RCMP (Exhibit G-20) alleging events that were not only uncorroborated by any other witnesses, but also unequivocally denied by those whom she claims were involved.

309 These events, namely the carrying of a firearm into the work premises, endangerment of her life by co-workers and the searching of her home by the employer, can only be described as the fruit of an imagination disconnected to reality. Ms. Legault reiterated these claims and made additional claims in a 49-page letter to the Director General of the IBFA on December 15, 2000.

310 The department hired a private contractor to conduct an investigation into her allegations. Quintet Consulting conducted the investigation and produced a report on October 31, 2001 (Exhibit G-50). This report concluded that there was no merit to Ms. Legault's complaint and that management had fulfilled its responsibilities towards Ms. Legault as an employee with personal problems.

311 However, prior to this report being completed, the department took action to sever the employment relationship. Paul Migus, Assistant Deputy Minister for the ISPB at the HRDC, informed Ms. Legault in a letter dated April 2, 2001, of his decision to terminate her employment in accordance with paragraph 11(2)(g) of the FAA as of the close of business that day. Paragraph 11(2)(g) of the FAA provides for the termination of employment for reasons other than disciplinary ones. Such terminations can be the subject of a review by an adjudicator appointed to hear a grievance.

312 Ms. Legault has argued that the employer had the burden of proof to establish just cause for termination and that it is important for the employer in such a case to document the employee's failings on the employee's personal file. The employer has a duty to issue written warnings and provide opportunities to correct the failings before it considers terminating the employee's employment.

313 I agree.

314 There is no doubt that an employer faced with a troubled employee does not have an easy task. Compelling a troubled employee to leave the premises and not report to work until the employee obtains a fitness-to-work certificate is an extreme measure that requires clear and unequivocal communication. Although I rejected the first grievance on the basis that the employer's action was not disciplinary, I was unimpressed with the employer's failure to provide Ms. Legault with a copy of the report accompanying the referral to Health Canada. I am even more disconcerted by the employer's failure to advise Ms. Legault that she faced the prospect of termination of employment if she failed to provide a fitness-to-work certificate. Such a failure is sufficient to invalidate the termination of employment.

315 In response to the concerns expressed over the lack of warning, counsel for the employer indicated that the post-termination evidence should convince me that Ms. Legault is still unfit to work and is still not in a position to provide a fitness-to-work certificate and, thus, this justifies the termination decision. Although I have doubt that her situation has improved, I am barred from using the post-termination evidence other than for assessing credibility or determining damages. The employer's decision has to be reviewed at the time that it was taken and for the reasons that it was taken. In doing so, I can only conclude that the decision to terminate Ms. Legault's employment was premature since Ms. Legault was not warned of the consequences of her inaction. I am, therefore, reinstating the employment relationship.

316 Had the employer discharged Ms. Legault for disciplinary reasons as a result of her making false accusations, the situation may have had a completely different outcome.

317 I am unwilling to grant Ms. Legault any compensation for lost income or benefits for the period between her termination of employment and the date of this decision, other than those that would normally be entitled to an employee on sick leave. I am also of the view that Ms. Legault should remain on sick leave without pay for a period to undergo a fitness-to-work assessment by a psychiatrist who is made aware of her behaviour and conduct over the recent years. Should she fail to willingly participate in such an assessment or should she be found not fit for work, the employer will then be in a position to terminate Ms. Legault's employment if it so chooses.

318 I would hope that, faced with this decision, Ms. Legault will take the necessary steps to address her health issues.

319 For all of the above reasons, I make the following order:

V. Order

320 The employment relationship is to be reinstated

321 Mrs Legault is to be placed on sick leave without pay until she can present a fitness to work assessment conducted by a psychiatrist confirming she is fit to work. This period of leave should not exceed six months.

322 Should she fail to present such a certificate, her employment can be terminated by the employer without further notice. 

323 The employer is to make the psychiatrist aware of her behaviour and conduct over the recent years along with the duties, the responsibilities and the work environment including the impact of her behaviour on her colleagues.   

324 Finally, a review of her file should be conducted to determine if she is eligible to benefits payable or available to a sick employee.

August 7, 2007

Georges Nadeau,
adjudicator