FPSLREB Decisions

I.  Grievance referred to adjudication

1 Harcharan (Harry) Sidhu (“the grievor”) is employed with the Correctional Service of Canada (CSC or “the employer”) as a correctional officer (CX-1) at Mission Institution in Abbotsford, British Colombia.

2 On April 27, 2004, the grievor and his vehicle were searched following information the CSC received that he might have been smuggling contraband into Mission Institution.

3 On August 5, 2004, the grievor filed the following grievance:

…

On April 27, 2004, I was subject to a non-routine search and a search of my vehicle authorized by acting warden Judy Campbell. Based on the disciplinary report shared with me by the warden of Mission Institution Vince LeBlanc on July 8, 2004, I grieve that this search was illegal, that management did not have reasonable grounds to authorize these searches and that my rights to have legal counsel were denied.

CORRECTIVE ACTION REQUIRED

That I receive a written apology of the Acting warden of Mission Institution Judy Campbell and the warden of Mission Institution Vince LeBlanc.
That all information and documentation regarding these searches be removed and destroyed from my files.
That I received a financial compensation of 50 000$ for humiliation, defamation, attack to my reputation, integrity and dignity, pain and suffering, stress and familial hardship.
That I be paid for all wages lost (wages, missed overtime opportunities) [sic]
That I be credited any sick leaves, annual leaves and FRL and all other leaves resulting of [sic] this measure and as well pension time.

…

4 On October 20, 2004, Don Demers, Deputy Commissioner, CSC, denied the grievance at the second level of the grievance process.

5 On January 5, 2005, the grievance was referred to adjudication by the bargaining agent – the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) – under paragraph 92(1)(a) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”). The bargaining agent relied on articles 1, 17, 18 and 37 of the collective agreement between the Treasury Board and the UCCO-SACC-CSN for the Correctional Services Group dated April 1, 2001 (Codes: 601/651; expiry date: May 31, 2002) (Exhibit G-4; the “collective agreement”). The grievor is covered by the collective agreement.

6 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, this reference to adjudication must be dealt with in accordance with the provisions of the former Act.

II. Summary of the evidence

7 By letter dated October 18, 2006, the employer advised the Public Service Labour Relations Board (formerly the Public Service Staff Relations Board) (“the Board”) that it objected to the Board’s jurisdiction to deal with this matter. The employer requested that the grievance be dismissed without a hearing.

8 On October 20, 2006, the Board informed the bargaining agent of the employer’s objection. At the same time, the Board advised both parties that the question of jurisdiction should be raised with the adjudicator at the outset of the scheduled hearing. The employer did raise the issue of its preliminary objection at the hearing and the hearing was restricted to this issue.

9 This decision therefore deals with whether I have jurisdiction to consider the grievance. I am not deciding its merits.

III. Summary of the arguments

A.  For the employer

10 Counsel for the employer argued that the grievance cannot be referred to adjudication. Counsel stated that subsection 91(1) of the former Act provides the issues that an employee can grieve. Subsection 92(1) defines the types of grievances that can be referred to adjudication. Those subsections read as follows:

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statue, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

…

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii)  termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

11 Counsel for the employer argued that the grievance was referred to adjudication under paragraph 92(1)(a) of the former Act, but there are no articles in the collective agreement that address searches. The search was carried out in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Exhibit E-1), and while respecting the parameters established in the CSC’s Commissioner’s Directives 566-8, “Searching of Staff and Visitors”, dated April 14, 2003 (Exhibit E-2), and 566-9, “Searching of Cells, Vehicles and Other Areas of the Institution”, dated March 17, 2003 (Exhibit E-3).

12 “Contraband” is defined as follows in subsection 2(1) of the Corrections and Conditional Release Act:

(a)  an intoxicant,

(b) a weapon or component thereof, ammunition for a weapon, and anything that is designed to kill, injure or disable a person or that is altered so as to be capable of killing, injuring or disabling a person, when possessed without prior authorization,

(c)  an explosive or a bomb or a component thereof,

(d) currency over any applicable prescribed limit, when possessed without prior authorization, and

…

13 Section 61 of that Act deals with “Searches of Vehicles” and section 64 with “Searches of Staff Members”:

Routine searches

61.(1) A staff member may, in the prescribed manner, conduct routine searches of vehicles at a penitentiary, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

Searches for contraband

(2) A staff member who believes on reasonable grounds that contraband is located in a vehicle at a penitentiary in circumstances constituting an offence under section 45 may, with prior authorization from the institutional head, search the vehicle.

Emergency searches

(3) Where a staff member believes on reasonable grounds that the delay that would be necessary in order to comply with the prior authorization requirement of subsection (2) would result in danger to human life or safety or the loss or destruction of the contraband, the staff member may search the vehicle without that prior authorization.

Frisk search or strip search

64. (1) Where a staff member believes on reasonable grounds that another staff member is carrying contraband or carrying evidence relating to a criminal offence and that a frisk search or strip search is necessary to find the contraband or evidence,

(a) the staff member may detain the other staff member in order to

(i) obtain the authorization of the institutional head to conduct a frisk search or strip search, or

(ii) obtain the services of the police; and

(b) where the staff member satisfies the institutional head that there are reasonable grounds to believe that the other staff member is carrying contraband or carrying evidence relating to a criminal offence and that a frisk search or strip search is necessary to find the contraband or evidence, the institutional head may

(i) authorize a staff member to conduct a frisk search of the other staff member, or

(ii) authorize a staff member of the same sex as the other staff member to conduct a strip search of that other staff member

…

14 Paragraphs 18 to 20 of Commissioner’s Directive 566-8 (Exhibit E-2) state the following with respect to “Searches of Staff Members”:

1. Where a staff member believes on reasonable grounds that another staff member is carrying contraband or evidence relating to a criminal offence and that a frisk search or strip search is necessary to find the contraband  or evidence, the staff member may detain the other staff member in order to obtain the authorization of the Institutional Head or the services of the police.

2. A staff member who is detained shall be informed promptly of the reasons for the detention and before being searched, will be given a reasonable opportunity to retain and instruct counsel without delay and be informed of that right.

3. Non-routine searches of staff shall be conducted and witnessed by a staff member (same sex) of a rank higher than that of the staff member being searched. Only one witness (same sex) shall be present.

15 Paragraphs 12 and 13 of Commissioner’s Directive 566-9 (Exhibit E-3) address the “Non-Routine Search of Vehicles”:

1. A staff member who believes on reasonable grounds that contraband is located in a vehicle at a penitentiary may, with prior authorization from the Institutional Head, search the vehicle

2. Where a staff member believes on reasonable grounds that the delay to obtain prior authorization from the Institutional Head would result in danger to human life or safety or the loss or destruction of the contraband, the staff member may search the vehicle without that prior authorization.

16 Counsel for the employer noted that the bargaining agent is relying on articles 1, 17, 18 and 37 and “any others applicable” of the collective agreement. Clause 37.01, the “No Discrimination” clause, states the following:

37.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Bargaining Agent, marital status or a conviction for which a pardon has been granted.

17 Counsel for the employer argued that since the bargaining agent is relying on clause 37.01 of the collective agreement, a complaint should have been filed with the Canadian Human Rights Commission, which would then determine whether to “kick back” the complaint under section 41 of the Canadian Human Rights Act. That in itself would indicate its desire to have the complaint heard before the Board. Counsel stated that she is not aware of any complaint having been filed, and since subsection 91(1) of the former Act deprives an employee of the right to present a grievance where another statutory administrative procedure for redress exists, the Board lacks jurisdiction.

18 Counsel for the employer stated that there are no articles in the collective agreement concerning searches of staff or their vehicles. However, that is addressed by the Corrections and Conditional Release Act and the CSC’s Commissioner’s Directives 566-8 and 566-9.

19 Counsel for the employer conceded that the grievor was not informed of his right to retain legal counsel before the search; he requested a union representative, and one was present. No contraband was found during the search, but if it had, and the grievor had been charged and arrested, then his right to have legal counsel present would be an issue. The employer is, however, prepared to provide the grievor with a letter of apology for not having informed him of his right to retain legal counsel.

20 During the CSC’s investigation, the grievor was suspended, but he did not suffer a loss of pay, a financial penalty or discipline. The grievance therefore cannot fall under the provisions of subsection 92(1) of the former Act.

B. For the grievor

21 The grievor’s representative filed schedule B of the Constitution Act, 1982, from which flows Part 1 of the Canadian Charter of Rights and Freedoms (“the Charter”). She argued that the grievor’s rights were violated since every employee has the right to be secure against any unreasonable search or seizure and the right not to be arbitrarily detained or imprisoned, as stated in sections 8 and 9 and in paragraphs 10(a), (b) and (c) of the Charter:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a)  to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

22 The grievor’s representative referred to clause 1.01 of the collective agreement, which speaks of harmonious and mutually beneficial relationships between the employer, bargaining agent and employees. However, to maintain that relationship the grievor’s representative argued that the employer must act in a reasonable manner. Clause 1.01 reads as follows:

1.01 The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Bargaining Agent and the employees and to set forth herein certain terms and conditions of employment for all employees described in the certificates issued by the Public Service Staff Relations Board on March 13, 2001 covering employees in the Correctional Group.

23 The grievor’s representative argued that the CSC acted on unreliable information when it searched him and his vehicle. The police report filed after the search indicated that there was insufficient evidence to charge the grievor with allegedly trying to smuggle contraband into Mission Institution. As a result of the search, the grievor returned to work at “mission impossible” instead of Mission Institution. Word of the search had spread throughout the institution – to inmates, the grievor’s co-workers, supervisors and managers. The grievor felt humiliated, and his reputation, dignity and integrity were defamed. He became so distraught that he sought psychiatric care.

24 The grievor’s representative also referred to clause 6.01 of the collective agreement, which gives those with managerial responsibilities the right to manage. However, managerial reasonableness is expected. Clause 6.01 reads as follows:

6.01  Except to the extent provided herein, this agreement in no way restricts the authority of those charged with managerial responsibilities in the Public Service.

25 In the grievor’s case, the search was unreasonable. The CSC did not inform him of his right to retain legal counsel. As well, the CSC did not respond to the grievance at the third and final level of the grievance process. Taken as a whole, this confirms the unreasonable treatment suffered by the grievor.

26 The grievor’s representative also referred to clause 18.01 of the collective agreement and noted that there are other clauses in the collective agreement that contain language to the effect that the employer shall exercise “reasonableness.” Clause 18.01 states the following:

18.01  The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Bargaining Agent, and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.

27 With respect to clause 37.01 of the collective agreement (the “No Discrimination” clause), the grievor’s representative stated that there is no other administrative body to deal with this matter and, therefore, the Board has jurisdiction.

28 The grievor’s representative referred me to the following cases: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Sabourin v. House of Commons, 2006 PSLRB 15; and Canada Post Corp. v. Canadian Union of Postal Workers (Fingerprinting Case) (1986), 26 L.A.C. (3d) 357.

C. Reply of the employer

29 Counsel for the employer stated that everyone entering a correctional institution is subject to being searched, be they visitors, inmates’ family members, correctional officers, supervisors or managers. The possibility of contraband being smuggled into a correctional institution is of paramount concern. The CSC is responsible for the safety and security of its staff and inmates. If it receives reliable information that a staff member might be smuggling contraband into an institution, then the non-routine search procedures are the relevant authorities that it relies on.

30 Counsel for the employer stated that the search of the grievor and his vehicle was authorized by the delegated authority – the Institutional Head – and the decision to conduct the search was based on information from informants and intercepted evidence. Therefore, the CSC was compelled to act.

31 Counsel for the employer concluded her arguments by stating that I was without jurisdiction over this matter, and she requested that the grievance be dismissed. She referred me to the following cases: Boutilier v. Canada (Treasury Board), [1998] F.C.J. No. 1635 (QL); Mohammed v. Canada (Treasury Board); Canada (Treasury Board) v. Boutilier; O’Hagan v. Canada (Treasury Board), [1999] F.C.J. No. 1867 (QL); Kehoe v. Treasury Board (Human Resources Development Canada), 2001 PSSRB 9; Westbrook v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 64; Jenkins v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 104; Robinson v. New Brunswick (Department of the Solicitor General), [1998] N.B.L.A.A. No. 10 (QL); R v. M. (M.R.) (1998), 166 D.L.R. (4th) 261; and Briar et al. v. Treasury Board (Solicitor General Canada - Correction Service), 2003 PSSRB 3.

IV. Reasons

32 The issue to be determined is whether I have jurisdiction to decide this matter. In other words, does the grievance meet the conditions set out in paragraph 92(1)(a) of the former Act?

33 An application to dismiss a grievance without an oral hearing can be allowed under subsection 84(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993:

84.(1) Subject to subsection (2), but notwithstanding any other provision of these Regulations, the Board may dismiss a grievance on the ground that it is not a grievance that may be referred to adjudication pursuant to section 92 of the Act.

34 I have carefully considered the grievance, the corrective action requested, the arguments of the parties and the case law. I was not provided with any evidence nor did I hear any submissions to the effect that a human rights element is a fundamental issue at play in this case. If it were, then the Board’s previous case law is quite clear: an adjudicator of the Board would have no jurisdiction since the matter is not one that can be referred to adjudication.

35 In Mohammed, Mr. Justice Linden quoted with approval the following from one of the earlier judgements of the Federal Court that were the subject of the appeal before him:

…

A review of the statutory scheme reveals that an employee possesses only a qualified right to present a grievance at each of the levels specified in the statutory process in the Public Service Staff Relations Act. In particular, an employee’s right to present a grievance is qualified or limited in two respects: by the requirement in subsection 91(1) that no administrative procedure for redress exists in another Act of Parliament; and, by the requirement in subsection 91(2) for the approval of and representation by the bargaining agent. Furthermore, under section 92, an employee may only refer a grievance to adjudication following the completion of the grievance process, up to and including the final level. In the event that an employee is not entitled to present the grievance at each of the levels in the process, by reason of the operation of a statutory limitation in either subsection 91(1) or (2), the grievance may not be referred to adjudication under section 92. In other words, where the operation of a limitation contained in either subsection 91(1) or (2) deprives an employee of his qualified right  to present the grievance, the employee cannot subsequently purport to refer the grievance to adjudication under subsection 92(1). In the event that an employee purports to refer such a grievance to adjudication, the adjudicator has no jurisdiction to entertain it.

Parliament chose, by virtue of subsection 91(1) of the Public Service Staff Relations Act, to deprive an aggrieved employee of the qualified right to present a grievance in circumstances where another statutory administrative procedure for redress exists. Accordingly, where the substance of a purported grievance involves a complaint of a discriminatory practice in the context of the interpretation of a collective agreement, the provisions of the Canadian Human Rights Act apply and govern the procedure to be followed. In such circumstances, the aggrieved employee must therefore file a complaint with the Commission. The matter may only proceed as a grievance under the provisions of the Public Service Staff Relations Act in the event that the Commission determines, in the exercise of its discretion under paragraphs 41(1)(a) or 44(2)(a) of the Canadian Human Rights Act, that the grievance procedure ought to be exhausted.

…

Paragraphs 41(1)(a) and 44(2)(a) of the Canadian Human Rights Act constitute important discretionary powers in the arsenal of the Commission, as it performs its role in the handing of a complaint, and permit it, in an appropriate case, to require the complainant to exhaust grievance procedures. Paragraphs 41(1)(a) and 44(2)(a) also indicate that Parliament expressly considered that situations would arise in which a conflict or an overlap would occur between legislatively mandated grievance procedures, such as that provided for in the Public Service Staff Relations Act, and the legislative powers and procedures in the Canadian Human Rights Act for dealing with complaints of discriminatory practices. In the event of such a conflict or overlap, Parliament chose to permit the Commission, by virtue of paragraphs 41(1)(a) and 44(2)(a), to determine whether the matter should proceed as a grievance under other legislation such as the Public Service Staff Relations Act, or as a complaint under the Canadian Human Rights Act. Indeed, the ability of the Commission to make such a determination is consistent with its pivotal role in the management and processing of complaints of discriminatory practices.

…

36 In my view, at the relevant time, Parliament enacted, through its legislative powers, another redress mechanism to deal with human rights issues. If the grievance at hand does indeed raise human rights issues, prior Board jurisprudence dictates that he should have availed himself of his rights under the Canadian Human Rights Act, as “another administrative process for redress.”

37 The bargaining agent referred the grievance to adjudication under paragraph 92(1)(a) of the former Act, which outlines the types of grievances that can be referred to adjudication. The grievor’s representative argued that an adjudicator could accept jurisdiction if the grievance were filed as a result of the employer’s application or non-application of collective agreement provisions.

38 After a thorough reading of the relevant articles of the collective agreement and an analysis of the grievance, I see no nexus between the grievance as written and any article in the collective agreement referred to me by the grievor’s representative. Thus, I must conclude that this grievance cannot be referred to adjudication under paragraph 92(1)(a) of the former Act.

39 I note that non-routine searches of CSC staff and their vehicles are clearly defined in the Corrections and Conditional Release Act and in the CSC’s Commissioner’s Directives 566-8 and 566-9.

40 Counsel for the employer argued that the grievor did not suffer a financial penalty nor was he suspended, demoted or his employment terminated. The grievor’s representative never contested counsel’s argument nor did she adduce any evidence to the contrary. Therefore, this grievance cannot be referred to adjudication under paragraph 92(1)(b) of the former Act.

41 Having decided that the grievance does not fit the parameters of the former Act, I will turn to the argument of the grievor’s representative related to the Charter. The grievor’s representative appears to argue that a grievance based solely on an alleged violation of the Charter can be referred to adjudication. In order to argue this, the grievor’s representative would need to have argued that the provision of the former Act that restricts the referral to adjudication of grievances dealing with collective agreement interpretations or discipline is contrary to the Charter and should be struck down. In that instance, the bargaining agent must provide notice to the federal and provincial Attorneys General. No evidence was adduced that this had occurred.

42 As well, in order to base an argument on the Charter, the bargaining agent would have to prove that the government was acting in its governmental capacity and not in its capacity as an employer since the Charter provisions referred to by the bargaining agent apply only to government action: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and McKinney v. University of Guelph, [1990] 3 S.C.R. 229. I heard no argument to this effect and I am therefore left unclear on the issue and unable to consider this argument any further.

43 Counsel for the employer indicated in her argument that the employer was prepared to provide the grievor with a letter of apology for not having informed him of his right to retain legal counsel before conducting the search. I urge the employer to do so. As per the CSC’s own directives, when there are non-routine searches of staff at any CSC institution, the employee concerned should be advised of his or her right to retain legal counsel before the search.

44 I also have concerns that there was no third-level reply to the grievance. As such, although a non-response is not contrary to the collective agreement, I suggest that the CSC follow its spirit and intent.

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

V. Order

46 The grievance is dismissed.

April 22, 2008.

D.R. Quigley,
adjudicator