FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On September 7, 2006, John King (“the grievor”) sent the following email to Stockwell Day, (then) Minister of Public Safety, with copies to Prime Minister Stephen Harper, (then) President of the Treasury Board John Baird, an email address at the Toronto Star and Jacques Bourbeau of Global News (Exhibit G-1, tab 1):

…

Mr. Day,

The evidence is clear that you have individuals that are not forthright or truthful in key positions of the CBS. In fact, they are a disgrace. Despite all the evidence and complaints against these people, you continue to ignore me and my allegations and these people continue to mismanage this agency, ruin the careers of people like myself that have been left with no choice but to find alternate options to address national border security issues, safety and health issues, code of ethics and values violations, etc. while continually being abused by those trying to keep everything secret.

I’m not sure whether your advisors or you understand the significance and consequence of this refusal to reply to me or investigate my allegations but it is fact that you, Mr. Harper and John Baird have had more than ample opportunity.

Apart from work, I had high hopes for your party after witnessing government corruption under the Liberals. I now believe that the Conservative platform last election of addressing government corruption was no more than a political platform of convenience that was used to roust the Liberals and to obtain power. Now that your party is in, serious allegations brought to your attention are ignored. A sad reality of Canadian politics.

CBSA President grilled by Senate Committee
JUNE 19-06  Testimony ... Senator Campbell to Alain Jolicoeur: “With all due respect, you are copping out. I am new here. I cannot believe this. I just cannot believe what I am hearing here. Are we serious about taking care of terrorism and people crossing our borders here? You cannot cop out by saying there are hundreds of places you can cross in this country. I know there are hundreds of places. You are responsible for the crossings. You came here in October. At that time you said there was no log being kept that would tell you how many people were jumping the border. Now we have a number of 1,600. Where did that come from?

Sincerely,

John King

2 At that time, the grievor was an employee of the Canada Border Services Agency (“the respondent” or “the CBSA”) assigned to a border services officer position (previously titled customs inspector) in Passenger Operations at Pearson International Airport (“Pearson”). He served as President of the Toronto District Branch of the Customs Excise Union Douanes Accise (CEUDA), a component of the Public Service Alliance of Canada, the certified bargaining agent.

3 In a letter to the grievor dated November 2, 2006 (Exhibit R-1, tab 39), John Gillan, Regional Director General, Greater Toronto Area (GTA) Region, CBSA, characterized the grievor’s mail as misconduct and imposed a 20-day disciplinary suspension without pay. The letter included the following statements:

…

The fact that you disseminated unsubstantiated allegations, which were critical of your employer, to members of the media is a serious breach of conduct and is in contravention of the Values and Ethics Code for the Public Service…

…

The Values and Ethics Code for the Public Service provides clear direction to employees who believe they have knowledge of wrongdoing in the workplace. They are advised to refer the matter to the Senior Officer designated by the Deputy Head under the provisions of the Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace. The Code further states that if the matter is not appropriately addressed at that level, or if the employee has reason to believe it could not be disclosed in confidence within the organization, it can be then referred to the Public Service Integrity Officer.

You are well aware of the name and contact information of the Senior Officer for the CBSA under the provisions of the Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace…

In view of the above, I consider your actions as misconduct…

…

4 The grievor presented a grievance at the first level of the grievance process on November 4, 2006, challenging Mr. Gillan’s decision. The grievor requested the following corrective action:

…

THAT I BE MADE WHOLE

THAT APPROPRIATE ACTION BE TAKEN IMMEDIATELY, THAT WILL ENSURE MY RIGHTS AND EMPLOYEE RIGHTS TO PROCEDURAL FAIRNESS ARE PROTECTED AND NO LONGER VIOLATED BY CBSA MANAGEMENT.

THAT ANY ACTION AS NOTED ABOVE BE MADE KNOWN TO ME A.S.A.P.

THAT ANY AND ALL CORRECTIVE ACTION TAKEN SPECIFICALLY AGAINST JOHN GILLAN TO CORRECT RELATED ABUSE OF AUTHORITY BE MADE KNOWN TO ME A.S.A.P.

THAT I BE COMPENSATED FOR ASSOCIATED PAIN, SUFFERING AND DEFAMATION OF CHARACTER.

…

5 After he received a final-level reply denying his grievance (Exhibit G-1, tab 10), the grievor referred it to the Public Service Labour Relations Board (“the Board”) for adjudication on May 4, 2007 under paragraph 209(1)(b) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”).

6 The Chairperson of the Board has appointed me as an adjudicator to hear and determine the matter. My task in this decision is to decide whether the respondent has proven that the grievor’s action comprised misconduct, on a balance of probabilities, and, if proven, whether the 20-day suspension without pay imposed by the respondent was the appropriate penalty.

II. Summary of the evidence

7 The evidence in this case was detailed and extensive, and was adduced under an order for the exclusion of witnesses. Eight current or former employees of the CBSA testified on behalf of the respondent: (in order) Gerry Derouin, Vice-President, Controllership Branch, and Chief Financial Officer; Bruce Herd, Director, Human Resources, GTA; Norm Sheridan, District Director, Passenger Operations, Pearson; Barbara Hébert, Vice-President, Operations; Héléne Mombourquette, Manager of Redress, Labour Relations; Ricardo Ramnarace, Superintendent, Integrated Customs Enforcement Team, Pearson; Mr. Gillan; Rhonda Raby, Chief, Operations, International Mail Processing Centre, Pearson; and Mandeep Dhanjal, Labour Relations Advisor, GTA.

8 The grievor was the sole witness on his own behalf.

A. Chronology of events — respondent’s witnesses

9 The following represents my appreciation of the basic chronology of events relevant to this matter as depicted in the respondent’s proof.

10 The origins of this case date to early 2002 when a document, subsequently known as the “Kingman spreadsheet,” was distributed to 147 customs inspectors. The document outlined “critical incidents” across Canada involving the use of force by customs inspectors at border crossings or other ports of entry. Mr. Sheridan testified that the management of the (then) Canada Customs and Revenue Agency was concerned about the distribution of the spreadsheet information and that it directed all recipients to destroy their copies. According to Mr. Sheridan, almost all recipients complied. The grievor did not.

11 The grievor’s refusal to obey instructions to destroy the Kingman spreadsheet eventually resulted in a 1-day and then a 10-day suspension. Those penalties became the subjects of four complaints made by the grievor (and of four other complaints made by Emerson Waugh) under section 23 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“the PSSRA”), and under section 147 of the Canada Labour Code, R.S.C. 1985, c. L-2 (“the Code”).

12 In argument before the Public Service Staff Relations Board (“the former Board”), the complainants, who represented themselves, made the following submission, among others, as reported in King and Waugh v. Canada Customs and Revenue Agency, 2005 PSSRB 3 (Exhibit R-1, tab 4) (“King and Waugh”):

…

[62]    The employer issued an illegal order, in that it violated Section 430(1) of the Criminal Code. The employer committed mischief by interfering with the lawful use of data.

…

The former Board upheld the complaints. The Vice-Chairperson included in his reasons the following statement concerning the grievors’ allegation that “[t]he employer issued an illegal order… ”:

…

[114]   I do not feel it necessary to comment on an alleged violation of the … Criminal Code.

…

13 In addition to making complaints under the PSSRA and the Code, the grievor pursued the issue of alleged criminality through other channels before his case was heard by the former Board. In 2002, the grievor laid private information before a justice of the peace in Brampton, Ontario, urging unsuccessfully that criminal charges be filed against Mr. Sheridan and Ms. Hébert for their roles in ordering the destruction of the Kingman spreadsheet.

14 The grievor and Mr. Waugh also approached the Royal Canadian Mounted Police (RCMP) detachment at Pearson on August 13, 2002. Mr. Sheridan testified that he understood that the grievor and Mr. Waugh alleged to the RCMP that Mr. Sheridan and Ms. Hébert violated the Criminal Code, R.S.C. 1985, c. C-46, when they ordered the destruction of the Kingman spreadsheet. Mr. Sheridan stated that he was advised at that time that the RCMP did not view the situation as a criminal matter and told the grievor and Mr. Waugh that they should deal with the issue as a labour relations matter with their employer.

15 Mr. Ramnarace testified that he was tasked with inquiring about the details of the encounter and retrieving any copies of the Kingman spreadsheet left with the RCMP by the grievor and Mr. Waugh. He subsequently contacted the RCMP, asked them what had transpired and reported his findings in an email to Mr. Herd on August 30, 2002 (Exhibit R-2). He testified that he sent the email to his RCMP contact to confirm the accuracy of his summary. The key paragraph of his email reads as follows:

…

… Sgt. McAllister … advised that the CEUDA members who were identified as King and Waugh arrived at the RCMP Airport Detachment and spoke with Cst. Eric Gaudreault. Sgt. McAllister further stated that both King and Waugh had concerns about the orders they received from CCRA Management, requesting the destruction or submission of documents they had in their possession and inquired with Cst. Gaudreault if the CCRA was in a legal position to make such a demand and presented the said documents for review. King and Waugh were advised by Cst. Gaudreault that the matter was not a criminal matter and did not warrant investigation. Cst. Gaudreault suggested that since the incident involved labour issues, King and Waugh might want to contact counsel regarding labour relations. Upon their departure from the RCMP Detachment, King and Waugh each turned over a separate file jackets [sic] containing the said documents.

…

16 On March 15, 2005, two months after the King and Waugh decision, the grievor wrote to Alain Jolicoeur, President of the CBSA (Exhibit R-1, tab 5). The grievor drew his attention to the following four sections of the Criminal Code: sections 122 (breach of trust by public officer), 126 (disobeying a statute), 139 (obstructing justice) and 430 (mischief). He then wrote as follows:

…

It is contended that contraventions of one or more of the aforementioned have been committed by Norm Sheridan, Director Passenger Operations, Lester B. Pearson International Airport, C.B.S.A. and Barbara Hébert, Vice-President Operations, C.B.S.A. against Emerson Waugh and myself, John King.

Supporting information in regard to these allegations will be appropriately disclosed during the investigation process.

…

17 Mr. Derouin testified that Mr. Jolicoeur forwarded the email to him, as the senior officer responsible for the Internal Affairs Division (IAD) at the CBSA, and that he asked him to determine what to do. Mr. Derouin said that he did not investigate complaints such as the grievor’s. He referred them to IAD officers for assessments and recommendations on the course to follow.

18 On May 3, 2005, Mr. Derouin emailed the grievor, acknowledging his complaint (Exhibit R-1, tab 6). Noting the grievor’s statement to Mr. Jolicoeur about disclosing “supporting information,” he told the grievor that he had insufficient information to determine whether an investigation was required and that he could not proceed “… unless adequate particulars of the alleged wrongful acts are provided.” He also referred the grievor to the Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (Exhibit R-1, tab 7) (“the Disclosure Policy”) as an available redress process.

19 The grievor replied the next day (Exhibit G-1, tab 18). He wrote that Mr. Derouin should inquire about the information laid before the justice of the peace and suggested that he could obtain a copy of that information from Mr. Sheridan or Ms. Hébert or, failing that, from the grievor. He also committed to forwarding a copy of the King and Waugh decision and offered to meet with Mr. Derouin once he had the documents  “… so that [the grievor] could provide additional information/comments.” Mr. Derouin testified that he sent the grievor’s email of May 4, 2005 and other documents to the IAD. He also met with the grievor “one or two times.” He stated that the assigned IAD officer informed him that there was nothing in the information that the IAD could work on. Mr. Derouin informed the grievor that he could not open an investigation until there was sufficient information.

20 In an email to Mr. Herd dated May 13, 2005 (Exhibit R-1, tab 10), the grievor stated that he had met with Mr. Derouin the previous day and that he had provided him with a verbal explanation of the information laid before the justice of the peace. For his part, Mr. Derouin recalled the grievor making only very broad comments during their encounters with no specific details about the allegations of criminal wrongdoing against Mr. Sheridan and Ms. Hébert. When Mr. Derouin subsequently received a copy of the grievor’s email to Mr. Herd, he reacted very negatively. He felt that the grievor’s email misrepresented the situation by inferring that Mr. Derouin had already decided to proceed with an investigation. He emailed the grievor on May 17, 2005 (Exhibit R-1, tab 11) “… to make it perfectly clear that no investigation of any sort has commenced …” and to advise the grievor “… to exercise caution in making unsubstantiated allegations and spreading false information about employees of this Agency.” He referred the grievor once more to the Disclosure Policy. He closed the email by stating that he had “… no intention of taking any further action with respect to your allegations.”

21 On May 13, 2005, Mr. Derouin received an email from Ms. Hébert asking the following question: “Gerry, you’re investigating?” (Exhibit R-1, tab 10). He called her to inform her that there was no investigation. In her testimony, Ms. Hébert stated that the only reason for her email was that, as the subject of the grievor’s allegation of criminality, she was curious about what was happening.

22 The grievor referred Mr. Derouin’s email of May 13, 2005 to Mr. Jolicoeur on May 18, 2005 (Exhibit G-1, tab 20). The grievor argued that Mr. Derouin was not in a position to judge that there were “unsubstantiated allegations” or that the grievor was “spreading false information.” He suggested that Mr. Derouin’s “predetermined finding/position” warranted a review of his conduct. He asked Mr. Jolicoeur to refer the allegations against Mr. Sheridan and Ms. Hébert to the IAD.

23 On June 20, 2005, the grievor wrote directly to (then) Prime Minister Paul Martin on CEUDA letterhead, signing the letter as the President, Toronto District Branch, CEUDA (Exhibit R-1, tab 12). He copied the letter to (then) Public Safety and Emergency Preparedness Minister Anne McClellan and attached a number of documents, including the King and Waugh decision. The grievor identified his letter as a “[c]omplaint for Breach of Duty” against Mr. Jolicoeur. He wrote as follows:

…

I John King do testify that there are multiple contraventions under various Acts of Parliament that have and continue to be committed by senior officials of the Canada Border Services Agency (CBSA) of which Alain Jolicoeur, President, has thus far refused to properly address and/or have investigated.

Some of the alleged and confirmed contraventions have been committed under legislation such as Part 2 of the Canada Labour Code, Public Service Staff Relations Act, Criminal Code, Charter of Rights and Freedoms, Canadian Bill of Rights and Privacy Act.

…

The grievor referred to the circumstances surrounding a 30-day suspension that he received in July 2004 for a letter that he wrote to Tom Ridge, former United States Secretary of Homeland Security (Exhibits R-1, tabs 2 and 3). He characterized the restriction imposed on him through the suspension as follows:

…

… a very serious and ongoing infringement of my fundamental rights as a citizen as I am no longer able to enjoy my fundamental right to Freedom of Speech which is enshrined within the Canadian Charter of Rights and Freedoms.

…

24 On June 30 and July 22, 2005, the grievor followed up with further emails to Prime Minister Martin and Minister McClellan about their failure to take action to initiate an investigation of his allegations (Exhibit R-1, tab 13). In the latter email, he advised them that he was prepared “to go public” if a “proper investigation” were not begun and stated the following:

…

I strongly recommend the aforementioned course of action is in your best interest as it is not only fair, reasonable and expected, but will also go a long way to preventing publicity of what I consider to be one of the most serious displays of government corruption and attempted cover-up which you and/or your offices are now directly involved [sic].

…

25 Following the July 20, 2005 email, the CBSA sent a briefing note to Minister McLellan under Mr. Jolicoeur’s name (Exhibit R-1, tab 14). The briefing note recommended that no action be taken by the Minister’s office or by the Prime Minister’s Office based on the following “[c]onsideration:”

…

Mr. King has made numerous complaints against Ms. Hébert. All have been unfounded. The PSSRB decision to which Mr. King refers is a public document. His complaint was addressed in the appropriate administrative forum and he received corrective action. There was no finding of any criminal wrongdoing.

…

26 As background, the issue of the risks faced by front-line customs officers had, by 2005, become the subject of vigorous representations to the government and a continuing public media campaign by national CEUDA representatives, including the CEUDA’s president, Ron Moran (Exhibit G-1, tabs 31 to 35). The CEUDA publications levied several charges against the CBSA, including that its officials had falsified reports about critical incidents. Among other reforms, the CEUDA called for the creation of a border patrol as well as the arming of customs officers. In at least one letter to Minister McClellan, dated September 1, 2005 (Exhibit G-1, tab 33), President Moran referred specifically to the discipline received in 2002 by the grievor and Mr. Waugh and to the King and Waugh decision overturning that discipline.

27 In fall 2005, the grievor continued his attempts to secure an investigation, turning to Stephen Harper, the (then) Leader of the Opposition (Exhibit R-1, tab 17 and Exhibit G-1, tab 24).

28 On December 14, 2005, Patti Bordeleau, a senior member of the labour relations team at CBSA headquarters, placed the following note on file (Exhibit R-1, tab 15):

…

This will confirm after discussion with senior management, a decision was taken to support the previous recommendation that the Minister not respond to Mr. King’s e-mail to the Prime Minister dated June 21, 2005 in which he alleged wrongdoing by senior officials of CBSA. It was also decided not to refer Mr. King’s allegations to the Senior Disclosure Officer.

The reason for this decision was because Mr. King had been offered the opportunity by Mr. Drouin [sic], the senior official responsible for investigations at CBSA, to provide him with details of the allegations. Mr. King did not do so and, therefore, an investigation was not conducted. The rationale for not referring the matter to the Senior Disclosure Officer was because CBSA had already offered him the opportunity to provide details to the Comptroller who has more investigative authority and mandate than the Senior Disclosure Officer.

…

29 After the Conservative Party formed the government after national elections on January 23, 2006, the grievor renewed his efforts, emailing the new Public Safety Minister, Stockwell Day, on April 15 and 19, 2006 (Exhibit R-1, tab 18).

30 In a separate incident, the grievor received a 30-day suspension on June 19, 2006 from Mr. Gillan (Exhibit R-1, tab 24). Mr. Herd testified that the parties later agreed in mediation to substitute a 5-day suspension (Exhibit G-2). However, when Mr. Gillan levied the discipline that is the subject of this case, the 30-day suspension was still on the grievor’s record. The adjudication of an earlier 30-day suspension for the “Ridge letter” remained pending.

31 On June 8, 2006, the grievor wrote once more to Minister Day, followed on June 29, 2006 by a lengthy “Complaint against the Canada Border Services Agency” addressed to the Prime Minister, to Minister Day and to President of the Treasury Board John Baird (Exhibit R-1, tab 26). In the latter document, the grievor detailed his objections to the 30-day suspension levied by Mr. Gillan earlier in the month, calling it “… part of an agenda and continued personal vendetta by certain senior officials within the CBSA … ” He also referred to the suspension he had received for the Ridge letter. He then turned to his allegations of criminal wrongdoing against Mr. Sheridan and Ms. Hébert. The grievor’s account included the following statements:

…

In September 2002 I submitted a complaint to the Ontario Court of Justice alleging two of CBSA management had committed offences under the Criminal Code. I alleged the two violated Sections 430, 139(2) and 118. Both have since been promoted.

The Crown lawyer … successfully had my complaint dismissed …

I do not recall any argument presented by the Crown lawyer against the merit of the offences I alleged were committed, under the Criminal Code.

When the same issue was brought before the Public Service Staff Relations Board, the Adjudicator rightly confirmed that he lacked jurisdiction to address criminal matters …

… The CBSA lost that decision which gives further merit to my allegations of criminality.

…

The allegations against senior officials of the agency were not substantiated due to any negligence or unwillingness on my part but solely because Mr. Derouin refused to investigate them.

I was not afforded an opportunity via any investigative process to present evidence or compelled to do so by the employer… .

…

In light of the above, it is reasonable to conclude that there are senior officials currently managing our nation’s border security that have committed criminality and who have never been held accountable for their actions.

…

[Emphasis in the original]

32 Three days before sending his “Complaint against the Canada Border Services Agency,” the grievor emailed Messrs. Gillan, Jolicoeur and Herd and Ms. Hébert, asking for the name and contact number of the senior officer in the CBSA designated for purposes related to the Disclosure Policy. Mr. Herd replied with the requested information (Exhibit R-1, tab 25).

33 On July 4, 2006, the grievor again emailed the Prime Minister, Minister Day and President of the Treasury Board Baird to provide a “supplementary comment” (Exhibit R-1, tab 28). His “supplementary comment” included the following statements:

…

I have no intent on forwarding a copy of my complaint to the media at this time, however, I do not intend on waiting indefinitely to see whether either of you or your offices intend on intervening or intend on waiting years to have these issues addressed through the more commonly used avenues of redress.

…

I demand to be afforded an opportunity to present supporting evidence on the allegations contained within my letters of complaint and hope to receive some indication in regard to the course of action you intend on taking, in the near future.

…

[Emphasis in the original]

34 On August 17, 2006, Mr. Jolicoeur wrote to the grievor on behalf of Minister Day “… to respond to your emails … dated April 15, April 19 and June 29, 2006, concerning allegations of wrongdoing and the 30-day suspension you received on June 19, 2006” (Exhibit R-1, tab 27). Mr. Jolicoeur indicated that the grievor never provided Mr. Derouin with the particulars of his allegations against Mr. Sheridan and Ms. Hébert. He enclosed a copy of the Disclosure Policy and referred the grievor to the designated CBSA senior officer or to the Public Service Integrity Officer (PSIO). Noting the grievor’s comment that he had no intention “at this time” to forward a copy of his complaint to the media, Mr. Jolicoeur wrote as follows:

…

… I wish to remind you that employees must disclose wrongdoing in accordance with the TBS policy. This means that only in exceptional circumstances would an employee be justified in making an external disclosure such as immediate risk to the life, health or safety of the public. Any unauthorized external disclosure could expose you to disciplinary action.

…

35 On August 25, 2006, the grievor once more emailed the Prime Minister, Minister Day and President of the Treasury Board Baird (Exhibit R-1, tab 28). The grievor stated his expectation that he would continue to receive “[a]dditional and more severe discipline” for failing to provide supporting information for his allegations “… now that [he had] resubmitted the same allegations to each of [them] … ” The grievor then continued as follows:

…

I will emphasize that prior to being disciplined a second time for any alleged repetitive misconduct, I must be afforded procedural fairness and the opportunity to provide supporting information to said allegations …

I repeat that to date I have been denied any such opportunity through an appropriate or formal investigative process.

…

At this time I must also fulfill another obligation by issuing each of you a caution.

Please note that I perceive any continued lack of action on your part and/or your office staff, as harassment and conduct which condones the continued abuse of authority and interference as noted in my complaint sent to each of you on June 29^th. As such, I will be compelled to identify each of you as respondents on any future complaint submitted under the PSLRA, should I be required to submit such a complaint as a means of protecting myself and my rights and/or to ensure related and ongoing contraventions committed by senior officials within CBSA are addressed.

…

[Emphasis in the original]

36 Two weeks later, on September 7, 2006, the grievor sent the email that triggered the 20-day disciplinary suspension (Exhibit G-1, tab 1).

37 In an email to the grievor on September 8, 2006, Mr. Gillan mentioned Mr. Jolicoeur’s August 17, 2006 letter. The grievor replied to Mr. Jolicoeur and others stating that he had not received any such letter. Mr. Herd reported back on September 11, 2006 to the grievor telling him that local management had located a copy of the letter from Mr. Jolicoeur in an opened envelope on the grievor’s desk in Terminal 3 at Pearson. The grievor then requested, and received, a scanned copy of the letter from Mr. Herd. On October 10, 2006, the grievor emailed Mr. Jolicoeur asking him “… how such a letter was received open and took almost one month to get to [him] …” (all documents in Exhibit G-1, tab 28).

38 On October 12, 2006, the grievor emailed the PSIO about the “protected” status of Mr. Jolicoeur’s letter (Exhibit G-1, tab 28). He also stated the following:

…

I also would appreciate an opinion on the refusal by government officials to investigate formal allegations of criminality once they have been resubmitted a second time. This is part of an alleged cover-up of which I am determined to have addressed in light of the fact that the employer arbitrarily refused to investigate or address such the first time.

…

39 Mr. Gillan notified the grievor on October 17, 2006 that he was convening a disciplinary hearing the next day to provide the grievor an opportunity to explain his September 7, 2006 email (Exhibit R-1, tabs 34 and 37). Later that day, the grievor emailed Paul Burkholder, Vice-President, Human Resources, copying Mr. Gillan and others (Exhibit R-1, tab 35). Among other matters, the grievor questioned the propriety of Mr. Gillan convening a hearing about discipline that he had decided.

40 On October 18, 2006, Mr. Burkholder confirmed to the grievor that Mr. Gillan was the “[d]elegated authority to render discipline and is exercising procedural fairness in providing [the grievor] an opportunity to explain [his] actions.” The grievor amplified his concerns about Mr. Gillan and other matters in a reply that afternoon (Exhibit R-1, tab 36).

41 On the same day, the grievor emailed the Prime Minister, Minister Day and President of the Treasury Board Baird (Exhibit R-1, tab 37). Noting information that he had received to the effect that Minister Day’s office would not intervene in the disciplinary investigation, the grievor closed with the following words:

…

Why are you unwilling to find out or give me a chance to speak to these issues.

Why do you continue to allow me to be subjected to senior officials that protect one and other [sic] by violating employees that have exhausted the internal process with no success and then use whatever other options are available to expose and address various government contraventions/misconducts?

Not only is everybody including Members of Parliament refusing to address or investigate my previous allegations & Ministerial complaint submitted June 29/06, but now Stockwell Day has had Alain Jolicoeur respond to said complaint on his behalf.

If each of you would only take the time to address what has and continues to plague the administration of this government, all Canadians would be better served.

Famous last words from the ’91 strike, I can get another job but I can’t get another country.

…

42 The grievor did not attend the October 18, 2006 disciplinary hearing.

43 Mr. Gillan issued his letter of discipline to the grievor on November 2, 2006 (Exhibit R-1, tab 39).

B. Other evidence from the respondent’s witnesses

1. Mr. Derouin

44 Mr. Derouin referred to the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown in force in 2005 and 2006 (Exhibit R-1, tab 9). He stated that he had acted in accordance with that policy when he found that there was insufficient information to proceed with an investigation of the grievor’s allegations. He pointed to the following excerpt from the policy as the governing procedure:

…

Any preliminary examination undertaken by a department should be limited to ascertaining whether there is a possible basis to an allegation. As soon as such an examination reaches the point where there is a reasonable basis to suspect that an allegation might reasonably be expected to have some substance, the matter should be reported as outlined in Appendix C.

…

45 Concerning his email to the grievor of May 17, 2005 (Exhibit R-1, tab 11), Mr. Derouin maintained that his reference to “unsubstantiated allegations” did not mean that he had drawn conclusions about the allegations against Mr. Sheridan and Ms. Hébert. In Mr. Derouin’s view, the file was not closed, but he had not received any further information from the grievor to convince him to open an investigation. He stated that he could not recall hearing from the grievor after May 17, 2005.

46 Mr. Derouin outlined that he had the impression throughout his dealings with the grievor that the grievor was representing himself. According to Mr. Derouin, the grievor never indicated that the allegations were union issues. He confirmed that no other bargaining agent official approached him about the topic.

47 In cross-examination, Mr. Derouin agreed that he was aware that the grievor was a full-time union officer and that he was well known for vigorously defending his members.

48 Mr. Derouin disagreed with the suggestion that the grievor outlined in great detail the nature of his concerns when they met. He reiterated that the grievor’s comments were broad and unspecific, which was why he asked the grievor for more information. He said that he also needed more details because he was not aware of the history behind the situation. That said, Mr. Derouin confirmed that he had read King and Waugh and the summary of evidence that it contained about the actions of Mr. Sheridan and Ms. Hébert. He testified that he did not understand the relevance of the decision to the grievor’s allegations in May 2005 of criminal actions by Mr. Sheridan and Ms. Hébert. He thought that the decision had resolved past matters. Mr. Derouin testified that he was not sure whether anyone at the IAD looked up the information laid before the justice of the peace in 2002.

49 Mr. Derouin maintained that he did not intend the last sentence of his May 17, 2005 email to the grievor (Exhibit R-1, tab 11) to convey that he was closing the file. He agreed that it was a fair reading of that sentence that he did not say that he would consider further information from the grievor. He disagreed that his message to the grievor was that the grievor’s allegations were frivolous or vexatious or made in bad faith. His concern was that the grievor sent an email to Mr. Herd and others implying that there was an investigation and that the grievor might tarnish the reputations of the parties involved.

50 The grievor asked Mr. Derouin how he had formed the impression that the grievor was representing himself in pursuing the allegations against Mr. Sheridan and Ms. Hébert given that the Board had found in King and Waugh that the respondent had violated the grievor’s rights as a union representative. Mr. Derouin replied that he would normally have expected that someone representing the union would have the endorsement of another union official or that the union would have placed the topic on the agenda for labour-management consultations. He stated that he heard nothing about the allegations raised by the grievor from executive-level representatives of the bargaining agent. Mr. Derouin conceded that he never asked the grievor whether he was bringing forward the allegations as an individual or as a union matter.

2. Mr. Herd

51 Mr. Herd identified a letter that Ms. Hébert sent to the grievor dated February 22, 2002 (Exhibit R-1, tab 1). He indicated that the letter was the result of a mediated settlement of a complaint made by the grievor about communications that he had had with Mr. Sheridan concerning an alleged threat by the grievor to write to United States President George W. Bush. Mr. Herd also identified the letter sent by the grievor to Secretary Ridge on May 22, 2004 (Exhibit R-1, tab 2) that led to disciplinary action by Ms. Hébert (Exhibit R-1, tab 3).

52 Mr. Herd testified that he was surprised when he received the email of May 13, 2005 from the grievor about his meeting with Mr. Derouin that indicated that Mr. Derouin had requested documents on the allegations of criminality against Mr. Sheridan and Ms. Hébert (Exhibit R-1, tab 10). Mr. Herd stated that he believed that the CBSA never received a copy of the information placed before the justice of the peace by the grievor in 2002. He informed the grievor to that effect several days later.

53 Mr. Herd confirmed that there were two disciplinary penalties on the grievor’s file when Mr. Gillan disciplined him. The first was the 30-day suspension imposed by Ms. Hébert for the grievor’s letter to Secretary Ridge. The second was the 30-day suspension on June 19, 2006 from Mr. Gillan (Exhibit R-1, tab 24), which was later reduced to 5 days.

54 Concerning Mr. Jolicoeur’s letter to the grievor of August 17, 2006 (Exhibit R-1, tab 27), Mr. Herd recalled that management looked for the letter on the surface of the desk provided to the union at Pearson. Management confirmed that they found the letter in an opened envelope on the desk. Mr. Herd noted that other bargaining agent representatives had access to the desk while the grievor served a suspension beginning on August 6, 2006.

55 In cross-examination, Mr. Herd confirmed that he understood that the grievor sent his email of May 13, 2005 in his capacity as a CEUDA representative.

56 Referring to the email that he received from Mr. Ramnarace about the meeting that Messrs. King and Waugh had with the RCMP in 2002 (Exhibit R-2), Mr. Herd rejected the suggestion that Messrs. King and Waugh were seeking advice as to whether they were guilty of an offence by retaining copies of the Kingman document. He stated that he understood that Mr. King and Mr. Waugh met with the RCMP to discuss criminal allegations against Mr. Sheridan and Ms. Hébert.

3. Mr. Sheridan

57 Mr. Sheridan testified that the grievor was not on leave of absence from his position as a border services officer in September 2006. He served as the president of the local branch of the CEUDA, but the respondent paid his PM-3-level salary and benefits. When the grievor wanted leave to pursue his union duties, he applied for it for the specific day or days in question. Mr. Sheridan described RC509 “Time and Activity Records” for the grievor covering several periods between April 7 and September 15, 2006, as well as leave applications submitted by the grievor (Exhibit R-4). He also described a summary of the leave taken by the grievor in fiscal years 2006-07 and 2007-08 (Exhibit R-6). He stated that there was no formal written agreement between management and the grievor about his use of paid leave for union business but that it had been understood for a long time that he must apply for that leave. Even though the grievor stopped wearing his uniform on a regular basis in 2000, he remained an employee, and nothing exempted him from being required to work.

58 Mr. Sheridan testified that he never received a copy of the document provided to the justice of the peace by the grievor in 2002. He heard from the grievor on at least two occasions that the grievor was pursuing criminal charges against him. On one occasion, after a consultation meeting in February 2006, Mr. Sheridan stated that the grievor said to him that “[i]t’s nothing personal. I’ve got to do what I’ve got to do.” The grievor also told Mr. Sheridan to make sure that he put his house in his wife’s name because the grievor was going to sue him.

59 Mr. Sheridan stated that, although the grievor did not identify Mr. Sheridan and Ms. Hébert by name in the September 7, 2006 email (Exhibit G-1, tab 1), it certainly pointed directly to them given the grievor’s previous allegations of criminal activity on their parts.

60 In cross-examination, Mr. Sheridan testified that Sergeant McAllister at the RCMP detachment confirmed to him that the discussion between the grievor and Mr. Waugh and the RCMP focused on criminal allegations against CBSA management.

61 Concerning the grievor’s comment to him in February 2006 that “… it’s not personal …”, Mr. Sheridan discounted the proposition that the grievor meant that he felt an obligation to pursue the matter as a union officer. Mr. Sheridan said that he interpreted the comment as meaning that the issue for the grievor was his own reputation and that the matter did not relate to his union position. He confirmed that he was “quite certain” that the grievor told him that he should put his house in his wife’s name and that the grievor threatened a civil suit and criminal charges.

62 Mr. Sheridan confirmed that the telephone number listed on the September 7, 2006 email was for the grievor’s personal cellular telephone and that he had contacted the grievor using that number in the past for business purposes. He also confirmed that the email address for the grievor that appears was used for union business.

63 Mr. Sheridan testified that he did not know whether the CBSA attempted to contact the two media sources to whom the email was copied, nor did he have any evidence that they actually received the email or any information about what the media did with it.

64 The grievor asked Mr. Sheridan why the grievor was suddenly not acting in his union capacity when he sent the September 7, 2006 email if all previous correspondence on the same matters was sent in that role. Mr. Sheridan replied that the difference was that the grievor, who did not identify himself as a representative of the union in the September 7, 2006 email, copied it to two media sources who would not have known who he was. The other recipients of the email would reasonably have known that the grievor was writing in his capacity as a union official.

65 In redirect examination, Mr. Sheridan was referred to the grievor’s comment in his July 4, 2006 email to Messrs. Harper, Day and Baird (Exhibit R-1, tab 28) that he “… intend[ed] on exercising [his] rights under the Treasury Board Guidelines for public disclosure of wrongdoing should matters not be properly addressed by [their] offices in a timely manner.” Mr. Sheridan stated that the grievor never pursued that option.

4. Ms. Hébert

66 When Ms. Hébert read the grievor’s letter of March 15, 2005 to Mr. Jolicoeur referring to criminal offences committed by her and Mr. Sheridan (Exhibit R-1, tab 5), she felt that the grievor was not letting go of an issue that had been resolved in the past. She stated that the grievor had tried in 2002 to have criminal charges laid against them by approaching a justice of the peace, who did not entertain the grievor’s representations. The grievor also went to the RCMP around the same time with the same result. Finally, the Board decision in 2005 in King and Waugh made no finding of criminal activity. For the CBSA, the issues involving the Kingman spreadsheet were closed.

67 Ms. Hébert stated that she was not trying to interfere when she emailed Mr. Derouin on May 13, 2005 and asked about an investigation (Exhibit R-1, tab 10). As an affected party, she was surprised by the suggestion that an investigation was underway and was curious to hear from Mr. Derouin about what was going on.

68 According to Ms. Hébert, the grievor’s email of September 7, 2006 raised concerns because it was the first time that the media had seen the allegations that it contained. She stated that the media did not know the history behind the matter and could not have known that many statements in the email were false.

69 Ms. Hébert testified that no representative of the union other than the grievor ever raised his allegations.

70 Asked in cross-examination why she contacted Mr. Derouin to inquire about an investigation rather than Mr. Herd, who gave her the information in the first place, Ms. Hébert said that Mr. Derouin was a colleague and that it was perfectly natural for her to ask him. She again insisted that she was not interfering. She stated that she had no other communication with Mr. Derouin about the matter from May 3 to 17, 2005, when he was involved. She later learned, probably from Human Resources, that he decided not to investigate.

71 Ms. Hébert agreed that the CEUDA and the grievor had made strongly critical public statements in the past about the CBSA and its management. The email of September 7, 2006, in her view, was different from most of the other public statements and documents. It was signed by the grievor, not the union. An ordinary reader or the media would not have been in a position to identify the author as a union representative. The other documents talked about program issues and policies and were efforts by the CEUDA to lobby for changes that would directly affect the workplace. The grievor’s email was not. The CEUDA may have made inaccurate statements at times, but CEUDA representatives tried to explain their positions. The grievor’s email did not provide all the context and background that a reader was entitled to know.

72 Ms. Hébert concurred that the CEUDA had made consistent assertions that the CBSA was mismanaged. However, she noted that the CEUDA documents in evidence were issued by the CEUDA itself or by Mr. Moran, its president. Mr. Moran had a different role. Although an employee of the CBSA, he was on a leave of absence from the public service. If Mr. Moran had sent the September 7, 2006 email, the CBSA would not have had any authority over him. If the grievor had identified himself as a representative of the union in the September 7, 2006 email, Ms. Hébert testified that her concerns about the substance of the email would still remain.

73 Ms. Hébert stated that she was not aware of any action taken by CBSA management to contact the media about the grievor’s email, nor could she confirm that the media actually received the email. She also indicated that she did not know of any communication sent to Messrs. Harper, Day or Baird by CBSA management as a result of the email.

5. Ms. Mombourquette

74 Ms. Mombourquette distinguished an investigation involving the IAD from an investigation under the Disclosure Policy. In her view, the IAD process applies where there are allegations of criminality. The Disclosure Policy provides employees with a forum to report information about other types of wrongdoing in a process that is fair and free from reprisal. An employee is expected to go first to the senior officer in the department but may exceptionally refer a problem directly to the PSIO. Ms. Mombourquette indicated that the grievor did not refer an issue to either the CBSA’s senior officer or the PSIO before September 7, 2006.

75 In the course of her examination-in-chief, Ms. Mombourquette identified several documents as follows: the Values and Ethics Code for the Public Service (Exhibit R-1, tab 8), the Managers’ Guide to Conducting Internal Investigations (Exhibit R-9) and the policy on Preventing and Resolving Harassment (Exhibit R-10).

76 Ms. Mombourquette testified that the grievor never provided a rationale during the disciplinary investigation for the statements that he made in the email of September 7, 2006 during the disciplinary investigation. During the grievance process, he stated only that he did not name anyone or provide specific information identifying members of management. According to Ms. Mombourquette, the grievor never raised the point that he should not be disciplined because he was acting in a union role.

77 In cross-examination, Ms. Mombourquette agreed that the primary concern that management had about the grievor’s email was that he copied it to the media.

6. Mr. Ramnarace

78 According to Mr. Ramnarace, Sergeant McAllister verbally confirmed that Mr. Ramnarace’s report about the RCMP meeting in August 2002 was accurate. In cross-examination, he indicated that he did not take notes of his conversation with Sergeant McAllister. He first stated that he could say with confidence that Sergeant McAllister would have responded to his request to verify the report’s contents but, pressed further by the grievor, accepted that he could “… not state it with certainty …” and then that he had “… no specific recollection.”

79 The grievor put a document to Mr. Ramnarace that was admitted as an exhibit during the hearing that resulted in the King and Waugh decision (Exhibit G-4). The document, an RCMP record about the August 2002 meeting with the grievor and Mr. Waugh, includes the following statement: “Subjects apparently stated they were in possession of documents that were illegally obtained and they may be charged.” The grievor asked why Mr. Ramnarace’s report on the encounter focused instead on the issue of criminal charges against CBSA management. Mr. Ramnarace replied that his email to Mr. Herd represented his interpretation of the information that he received from the RCMP.

7. Mr. Gillan

80 From 2006 until his recent retirement, Mr. Gillan was responsible, in his role as Regional Director General, for the overall management of CBSA operations in the GTA. He reported to Ms. Hébert and supervised 12 “direct reports,” including Mr. Sheridan. As part of his duties, Mr. Gillan dealt with the grievor at third-level grievance hearings and with other issues raised by the bargaining agent at the regional level.

81 Mr. Gillan learned of the grievor’s email of September 7, 2006 when the CBSA’s national headquarters referred it to him and asked him to investigate. His initial reaction to the email was that it was completely inappropriate and that it put management in a very unfavourable light. He felt that the email clearly required further review.

82 Concerning the accuracy of the statements made in the email, Mr. Gillan offered the following comments: (1) he was not aware of any evidence to substantiate the allegation that individuals in key positions were not forthright or truthful; (2) there was no substantiating evidence provided against those individuals in the grievor’s complaints; (3) there was no evidence that those individuals ignored the grievor’s complaints, mismanaged the CBSA and ruined careers; (4) there was no evidence to suggest that the grievor had exhausted the available internal avenues for recourse; and (5) the grievor offered nothing to support the assertion that the members of the Conservative Party ignored serious allegations. Mr. Gillan indicated that he was not aware at that time of the extent of the grievor’s previous correspondence and whether the grievor had received responses to his correspondence.

83 Mr. Gillan testified that the grievor did not request more time or say that he did not have time to prepare, as required by the relevant collective agreement, when Mr. Gillan notified him on October 17, 2006 that he was convening a disciplinary hearing the next day, a hearing that the grievor failed to attend. The grievor also did not contact Mr. Gillan before the latter issued his letter of discipline on November 2, 2006.

84 Mr. Gillan stated that he considered the following factors when he decided to suspend the grievor without pay for 20 days: the serious allegations against CBSA management made in the email, copying the email inappropriately to the media and that the grievor should have known that his action was inappropriate on the basis of previous warnings about being reckless with the truth, as listed in the letter of discipline (Exhibit R-1, tab 39).

85 Mr. Gillan confirmed that the media did not publish the grievor’s comments. According to Mr. Gillan, he might have discharged the grievor had that been the case. The absence of follow-up by the media was probably the “key determining factor” in Mr. Gillan’s choice of a 20-day suspension as opposed to termination.

86 Mr. Gillan stated that the grievor’s previous disciplinary record was a factor in his decision, but he determined that he would not follow the traditional progressive discipline approach. He reported that the CBSA did not want to consider the email as a culminating event and that it decided instead to deal with it as a “one-off” occurrence. The CBSA still hoped that that it could convey the seriousness of its concerns to the grievor and change his approach.

87 Mr. Gillan reported that the grievor made two principal points at the third-level grievance hearing on January 31, 2007 — that the email had not been published and that it did not name individuals. He testified that the grievor did not explain the statements in the email or provide supporting evidence. The grievor also did not raise the argument that he should not be disciplined because he held an elected union position.

88 Mr. Gillan indicated that he never heard any other bargaining agent representative raise the concerns contained in the grievor’s email.

89 In cross-examination, Mr. Gillan agreed that he knew that the issue of the orders given by Ms. Hébert and Mr. Sheridan to destroy documents was of great interest to the bargaining agent. He indicated that he would have been aware of King and Waugh when he disciplined the grievor. He was also aware that the grievor made complaints with different ministers several times. He knew specifically about the grievor’s June 29, 2006 “Complaint against the Canada Border Services Agency” addressed to the Prime Minister, to Minister Day and to President of the Treasury Board Baird (Exhibit R-1, tab 26) and his August 25, 2006 follow-up email to the same ministers (Exhibit R-1, tab 28). Mr. Gillan agreed that the grievor repeatedly called for an investigation during summer 2006.

90 Mr. Gillan stated that the purpose of his investigation was both to find out why the grievor sent the email to the media and to determine whether there was evidence to support his allegations. He insisted that the grievor did not submit any such substantiation even though he said that he had supporting evidence.

91 Asked whether he was aware that the grievor presented allegations of criminality to Mr. Derouin, Mr. Gillan replied that he knew that the grievor had not provided Mr. Derouin with support for the charges and that he was aware of Mr. Derouin’s response and his decision not to investigate.

92 Mr. Gillan confirmed that the grievor previously complained about him to the Board. According to Mr. Gillan, if headquarters had decided that it was not appropriate for him to conduct the investigation, it would have been fine with him. Instead, Mr. Burkholder confirmed Mr. Gillan’s delegated authority to proceed.

93 Mr. Gillan differentiated the circumstances of this case from the previous situation when the grievor wrote to Secretary Ridge. In that case, according to Mr. Gillan, the grievor acted in his capacity as a union official. In this case, he wrote as an employee. Mr. Gillan agreed that he did not make that point in his letter of discipline but questioned why he should have mentioned it. It was clear to him that the grievor presented the issues in the September 7, 2006 email as an employee. Nevertheless, he agreed that the grievor was acting in his union role when he submitted his complaint to the ministers in June 2006. Asked whether the grievor did the same thing in his September 7, 2006 email, Mr. Gillan said that he was “[n]ot knowledgeable enough to make the distinction.”

94 The grievor questioned the logic of awarding a 20-day suspension after the two 30-day suspensions then on file. Mr. Gillan repeated that there was a feeling that the email should not be treated as a culminating incident, that is, that it should not be viewed as a termination offence. He recognized that his decision did not conform to a normal model of progressive discipline and again said that he had hoped that it would still “[s]end a message that the grievor would take forward.”

95 Concerning the third-level grievance hearing, Mr. Gillan testified that he did not recall the grievor specifically mentioning the King and Waugh decision but that “he may have.” If he did raise it, according to Mr. Gillan, it did not really make a difference. He noted that the decision overturned management’s action but did not make a finding of wrongdoing or criminality.

8. Ms. Raby and Ms. Dhanjal

96 Ms. Raby and Ms. Dhanjal discussed their respective notes taken at the second and third-level grievance hearings (Exhibits R-12 and R-13).

97 Ms. Raby testified that the grievor never suggested at the second-level hearing that he should not be disciplined because he was a union representative and that he did not provide evidence to support the allegations of wrongdoing or criminality.

98 Ms. Dhanjal testified that the grievor never suggested at the third-level hearing that there should not be discipline because he was acting as a union representative and that he did not provide evidence to support the allegations of wrongdoing or criminality. She also stated that the grievor did not raise King and Waugh as justification for the comments in his email.

99 In cross-examination, Ms. Dhanjal disagreed with the grievor’s interpretation of the reference in her notes that he said that there was “ample case law” about what a bargaining agent can do. She did not take that comment as arguing that he should not be disciplined because of his union role but, rather, as indicating that there was ample discussion in the jurisprudence about the role of the bargaining agent in the grievance consultation process. In response to the proposition that the grievor had stated his view that the allegations in the email had been documented and that there had been a rich discussion of those allegations, Ms. Dhanjal replied that that was “fair.”

C. Grievor’s evidence

100 The grievor outlined his involvement as a representative of the bargaining agent since first becoming a steward in 1990. Starting in 1996, he occupied full-time elected positions, first with the Customs and Immigration Union as the president of its Toronto District Branch and then from 1999 until 2005 as a national vice-president of the CEUDA. In that role, he chaired several national standing committees within the CEUDA, assuming special responsibility for safety and health issues and the shared border accord between Canada and the United States, among other files. In March 2005, the grievor decided to return to Toronto to become president of the Toronto local of the CEUDA, a position that he held until June 2007.

101 From the time the grievor became a full-time bargaining agent representative in 1996 and until his full-time involvement ended in 2007, the respondent granted him leave with pay for union business. Although he only performed bargaining agent duties while on leave, he continued to account for his hours to an office superintendant at Pearson in order to satisfy the requirements of his substantive position as a customs officer (later, a border services officer). According to the grievor, he was never considered a line employee.

102 On a number of occasions during his tenure as a national vice-president of the CEUDA from 1999 to 2005, the grievor performed the duties of its national president on an acting basis. On those occasions and in several other specific circumstances, the grievor’s status changed to being on leave without pay. The bargaining agent assumed responsibility for his salary during those periods.

103 The grievor described relations between the CBSA and the CEUDA in the early 2000s as increasingly difficult and conflicted. He identified himself as among those new members of the national executive of the CEUDA who advocated a more creative and aggressive approach to pursuing the priority issues of its members. Representation strategies changed, and the CEUDA turned more frequently to political and media campaigns to leverage progress on the dominant issues of the day. The most prominent issues were the CEUDA’s efforts to secure “officer powers” for its members — the authority to enforce Criminal Code infractions at the border and to apprehend offenders — and the arming of customs officers.

104  Against that background, the grievor described the circumstances that led to the King and Waugh decision. He explained that Brian Kingman, a customs officer, took the initiative to compile a list of incidents involving threats to, and assaults on, employees at border sites. He did so because there was a dispute at that time over the accuracy of public reports on the risks that customs officers faced. The spreadsheet that he developed to capture information received from fellow officers and gleaned from media reports included between 100 and 105 incidents over a period of 20 to 25 years. Mr. Kingman used the respondent’s email system to share the spreadsheet with 147 other employees. Two weeks later, management ordered employees not to communicate about the Kingman data and to destroy their copies of the spreadsheet. Management stated that employees were not authorized to have the information and that retaining the information was a violation of section 107 of the Customs Act, R.S.C. 1985, c. 1 (2ndSupp.).

105 As the member of the CEUDA’s national executive with primary responsibility for health and safety matters, the grievor took the lead in objecting to management’s order. He met with Ms. Hébert to discuss why he wanted to retain the Kingman document in his union capacity. Ms. Hébert ordered him to destroy his copy. The grievor complied. He erased the electronic copies in his possession and turned over a hard copy of the spreadsheet to his legal counsel. According to the grievor, an unknown number of copies remained in circulation across the country. In addition, his colleague, Mr. Waugh, who served as a local health and safety representative for the CEUDA, received a copy from an anonymous source on his doorstep or by mail. The grievor was not sure whether that copy was the same as the original.

106 The grievor and Mr. Waugh took the position that they had a right to retain the copy of the Kingman spreadsheet that the latter had received outside the workplace. Sometime in May 2002, they brought the copy to the workplace for a local occupational safety and health committee meeting. Later, after further discussions with Ms. Hébert and Mr. Sheridan, the grievor was ordered by Mr. Sheridan on Ms. Hébert’s behalf to destroy that copy as well. The grievor refused to comply because he felt that the order was unlawful. He believed that it was his responsibility as the CEUDA’s national co-chairperson of the Occupational Health and Safety Policy Committee to retain and protect the information. For his refusal to comply, the grievor received a 1-day suspension on August 27, 2002 and a 10-day suspension on November 8, 2002. He and Mr. Waugh, who also was disciplined, made complaints against the order to destroy the Kingman spreadsheet under both Part II of the Code and the PSSRA. Those actions were later the subject of the King and Waugh decision.

107 The grievor suggested to Mr. Waugh that they meet with the RCMP to determine what, if any, of the Kingman information they could not retain under section 107 of the Customs Act. The grievor insisted that the purpose of meeting with the RCMP was not to have charges laid against Ms. Hébert and Mr. Sheridan. They were concerned only with finding out whether they themselves were in violation of the law, as the CBSA alleged. The meeting with the RCMP took place at its detachment at Pearson on August 2, 2002. When the grievor later received a copy of an RCMP report about the meeting (Exhibit G-4), he interpreted it as finding that possessing the Kingman information was not a contravention of the law.

108 The grievor outlined that his next step was to lay private information before the Ontario Court of Justice in Brampton (Exhibit G-5). In doing so, he maintained that he was trying to use whatever mechanisms were available to him to protect the Kingman document and to preserve the bargaining agent’s right to that information. At the resulting hearing, before a justice of the peace, the attending Crown Attorney advised that the grievor’s concerns were labour relations issues. For his part, the justice of the peace said that the grievor should refer the matter to the labour board. The grievor stated that he never received the reasons why the justice of the peace did not consider that there were issues of criminality involved.

109 The grievor continued to pursue his complaints before the former Board. When he received the King and Waugh decision in January 2005, he decided to follow up on the matters previously submitted to the Ontario Court of Justice. He believed that the issue of criminal wrongdoing remained outstanding. The result was his internal complaint of March 15, 2005 addressed to Mr. Jolicoeur (Exhibit R-1, tab 5).

110 The grievor outlined that he subsequently provided to Mr. Derouin, who was asked by Mr. Jolicoeur to investigate, a written explanation of the background of his concerns about the orders to destroy the Kingman information (Exhibit G-1, tab 18). He stated that Mr. Derouin had also received King and Waugh and that he explained his allegations when they met on May 12, 2005. The grievor testified that Mr. Derouin did not provide a position at that meeting as to whether the information that he had received from the grievor was sufficient. The only response that he received was Mr. Derouin’s email of May 17, 2005 (Exhibit R-1, tab 11), stating that there would be no investigation. The grievor felt that the response was unfair, unjust and unacceptable. He believed that the CBSA was burying allegations that it had a duty to investigate and that Mr. Derouin had not at all addressed the allegations of criminality.

111  The grievor referred to his subsequent email of June 5, 2005 to Prime Minister Martin, in which he complained that Mr. Jolicoeur had breached his duty to investigate the grievor’s allegations (Exhibit R-1, tab 12), and to the resulting exchange of emails with the prime minister’s office (Exhibit G-1, tab 21). With respect to how he customarily signed those and other documents sent in his bargaining agent role, the grievor explained that his practice varied. He indicated that he did not necessarily use his union title if he previously corresponded with someone who knew from that correspondence about his union position (see also Exhibit G-6).

112 According to the grievor, nothing happened as a result of his complaint to Prime Minister Martin. In his words, he “… got the brush-off at every level.”

113 After tracing his efforts in fall 2005 and the first half of 2006 to bring his concerns about management’s actions to the attention of the Conservative opposition (Exhibit G-1, tab 24) and then to the new Conservative government (Exhibit R-1, tabs 17, 18 and 26), the grievor was asked why he was “still hammering away” at the issue of criminality. He answered that one of his duties as a union official was to insure that “… the process is fair and consistent, that policies are followed, that the rights of the members are respected and that management administers in a fair and just manner.” In his view, trust, accountability, fairness, consistency, respect and adherence to member rights by management representatives are paramount. In his words, “… if the likes of Mr. Derouin can so readily dismiss allegations of criminality … and if [the grievor] can’t get formal allegations of criminality addressed, what hope [does he] have of getting problems of the members addressed?” The grievor felt duty bound to address those issues. “The members expected that of [him].”

114 By the time he sent his email of September 7, 2006, the grievor testified that he was frustrated with receiving the “brush-off” from every other avenue and felt that there was nothing more that he could do through regular channels. He felt that he had provided enough information to justify an investigation but that nothing had happened. He indicated that he copied the email to media sources with whom he had previously corresponded (and to whom he had previously identified himself) in the hope that some action would be taken. He thought that using the media would motivate the respondent to take a more responsible approach. According to the grievor, “[i]t was desperation, frustration, a last call.”

115 With respect to his inclusion in the email of the excerpt from the media report about Mr. Jolicoeur’s testimony to the Senate committee, the grievor stated that it was relevant because it supported previous allegations that the grievor and the CEUDA had tried to have addressed for years. He believed that the quote showed that “… it was not just a personal opinion, that other jurisdictions were making comments.” The CEUDA’s concern about border runners and border security was long standing and had been the subject of many media releases (for example, Exhibit G-1, tabs 31 to 35). The CEUDA believed that Mr. Jolicoeur was not truthful in his testimony about border security. It wanted the government to establish a border patrol so that officers working alone at border points would have security assistance available to them.

116 Turning to his comments in the September 7, 2006 email, the grievor maintained that they did not target Ms. Hébert and Mr. Sheridan. His reference to the actions of senior officials concerned the upper echelon of the CBSA collectively. The statements were not sparked by a single incident. They were provoked by Mr. Jolicoeur’s testimony and what had transpired over many years. The grievor testified that he “… could not accept that they could just disregard his allegations …” by which he meant the allegations that he had made in his complaint of June 29, 2006 (Exhibit R-1, tab 26). He stated that the allegations of criminality “… came into play as well.” He asserted that “. . . they misrepresent knowingly, that is a fact, documented.”

117 The grievor maintained that he did not receive Mr. Jolicoeur’s letter of August 17, 2006 (Exhibit R-1, tab 27) before he sent the email. He also stated that he subsequently raised his concerns with the PSIO (Exhibit G-1, tab 28).

118 The grievor explained that he did not attend the disciplinary hearing convened by Mr. Gillan because he was on leave that day and because he was chairing a general membership meeting. He also stated that the principle of adherence to the requirement for one day’s notice of a disciplinary hearing in the relevant collective agreement was important to him. The grievor acknowledged that he posed a series of questions to Mr. Burkholder and others before the meeting (Exhibit R-1, tabs 33 to 36). He believed that he was being harassed, that Mr. Gillan was biased and was targeting him for discipline. He noted that he had an outstanding complaint against Mr. Gillan before the Board at that time. The grievor testified that he wanted clarification before the meeting as to whether there would be an investigation of his allegations of criminal wrongdoing. He indicated that he never received answers to the questions that he posed.

119 The grievor testified that he raised the issue of his rights as a bargaining agent official at the third-level grievance hearing. He said that he stated that union representatives enjoy protection if they do not go outside established parameters.

120 In the final stages of his examination-in-chief, the grievor made the following points: (1) that he did not recall ever threatening that he would sue Mr. Sheridan and never retained counsel for that purpose; (2) that no media representative ever contacted him about the email; (3) that he had communicated with the CBSA in the past on matters of personal interest; but (4) that he undertook all the relevant communications in this case in his capacity as a union official.

121 In cross-examination, the respondent referred the grievor to his meeting with the RCMP and suggested that he wanted to know from the RCMP whether management’s order to destroy the Kingman document violated the Criminal Code. The grievor stated again that he and Mr. Waugh wanted to know if they were in contravention of section 107 of the Customs Act. He said that there might have been some confusion but that he had not asked about the respondent violating the Criminal Code. However, he added that he could not speak for Mr. Waugh.

122 The respondent asked the grievor whether he had ever approached any police force to lay charges against Ms. Hébert and Mr. Sheridan. The grievor testified that he took a number of documents to the Peel Regional Police Force and discussed charges. He could not recall exactly when but the meeting occurred after the publication of the King and Waugh decision. The Peel Police assigned two constables to the matter, who spoke with Mr. Sheridan. In a subsequent meeting with the grievor at Pearson, they told him that the order to destroy documents would not be a criminal matter without evidence of a “guilty mind.” If Ms. Hébert and Mr. Sheridan believed that employees were in contravention of section 107 of the Customs Act by retaining the Kingman information, then there would be no “guilty mind.” The grievor said that he told the constables that Ms. Hébert and Mr. Sheridan had ordered him to destroy all the information, including “… information that [he] had a legal right to retain.” According to the grievor, the constables’ “jaws dropped” on hearing that. He then stated that they said that there was nothing that they could do. He testified that he was sure that politics were at play and that he felt that the constables would feel uncomfortable “… coming after a guy in the blue line at the CBSA.” It was, according to the grievor, an “our-hands-are-tied moment.” The grievor said that he backed off and that he “… just went up the internal chain of command.”

123  The grievor confirmed that the justice of the peace did not issue a written decision as a result of the hearing in Brampton. The matter was “[r]eferred to the labour board.” He inquired about securing a transcript of the hearing for a possible appeal, but it was too expensive, and he did not have the money. The grievor believed that he could return to the issue of criminality later. He agreed that he did put the issue of criminality to the former Board but knew that that Board could not deal with it. When King and Waugh was issued — containing the statement that the Vice-Chairperson did “… not feel it necessary to comment on an alleged violation … of the Criminal Code” — the grievor said that he did not return to the court to purse his allegations of criminality because he thought the respondent “had the case” at that point. He wanted to let the respondent deal with the matter.

124 If the grievor’s primary concern was to protect the Kingman document, the respondent asked him why he went to the court when his lawyer and the national executive of the CEUDA had a copy. The grievor replied that he never went back to the lawyer. He felt that the second copy of the document — the copy received by Mr. Waugh in a brown envelope — was a “whole different situation.” The circumstances at that time were different. He faced a 1-day and a 10-day suspension. He no longer had the services of a lawyer. He said, “Our tactics changed to adapt.” He felt that if he went to the court, he could retain the document and use it for analyzing job hazards.

125 Referred by the respondent to his email of July 5, 2005 to Prime Minister Martin (Exhibit R-1, tab 13), the grievor agreed that the email contained allegations of criminality, among others. He agreed as well that the allegations that he mentioned in his email of April 16, 2006 to Minister Day, copied to Prime Minister Harper and others, also included issues of criminality (Exhibit R-1, tab 17).

126 The grievor acknowledged that he had access to, and had read, the Disclosure Policy as referenced by Mr. Herd in his email of June 27, 2006 (Exhibit R-1, tab 25). He testified that he could not recall contacting the senior officer identified by Mr. Herd but also that he could not recall when he had accessed Mr. Herd’s email. He stated that management had closed his workplace email account several times while he was suspended and that he did not know whether Mr. Herd sent the email to his work or home address. Asked when he was suspended, the grievor replied that he could not remember the actual dates. He agreed that he would have at least had the opportunity to read Mr. Herd’s email by August 2006 but maintained that he could not recall whether, or when, he saw it. Pressing further, the respondent asked the grievor to confirm that he would have read the email if Mr. Herd sent it to his home email account. The grievor replied that he might have missed it.

127 The grievor confirmed that he did not contact the senior officer between the time of the King and Waugh decision and his email of September 7, 2006. He confirmed as well that he did not contact the PSIO before September 7, 2006. Agreeing that he had not initiated any of the procedures under the Disclosure Policy, the grievor stated that he did not refer his concerns to the PSIO because he thought that it had no authority to investigate and that it could not deal with criminal matters or give opinions on criminal matters.

128 To the question, “Do you regret the comments that you made in the September 7th email?” the grievor answered that he did not feel that he had anything to be sorry about. He was doing his duties within the parameters of his work as a union official. The subject of the email was already in the public domain. He stated, “All I did was follow-up to five recipients in a private email.” He testified that he believed “without question” that the allegations in the email were substantiated. Asked if he would send the email again, he answered that it would depend on the outcome of the hearing. In his words, “… if it’s found to be within my duties, there would be no reason not to.”

129 Cross-examination concluded with the grievor stating that he did not send the email to Mr. Bourbeau, one of the media recipients, with the hope that he would write an article, as Mr. Bourbeau had done in 2001. The grievor testified that he had provided the King and Waugh decision to Mr. Bourbeau, who also had the Senate committee report about border runners. According to the grievor, Mr. Bourbeau already had the information that he needed for a follow-up story.

D. Reply evidence

130 Mr. Herd testified that he sent his email of June 28, 2006 identifying the senior disclosure officer to the grievor’s home email address because the grievor’s original request for that information came from that address (Exhibit R-1, tab 25). The grievor’s home address is labelled “King, John.” His workplace email address is labelled “King, JohnB.”

III. Summary of the arguments

A. For the respondent

131 The respondent accepted that it had the burden of proof to establish its allegations of misconduct and that they warrant a 20-day suspension. It must prove its case on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, at para 49.

132 However, it contended that the grievor had the burden to establish that he was acting in a union capacity in sending the September 7, 2006 email and that he is entitled, as a consequence, to advance union immunity as a “specific positive defence”: M. Gorsky et al., Canadian Labour Arbitration, Carswell, Toronto, 2009, release 2, at 9-25; and Kelly v. Treasury Board (Correctional Service Canada), 2002 PSSRB 74, at para 99. In assessing whether the grievor has met his burden of proof, his evidence should be judged based on “… its harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.A.A.).

133 The respondent maintained that it proved its allegations. The evidence is that the grievor did send the email of September 7, 2006 to media sources after being warned against making such allegations and after being directed to the Disclosure Policy. As a result, the respondent has established that the grievor did what was alleged in the letter of discipline.

134 To determine whether the grievor’s conduct warrants discipline, the adjudicator must first determine the applicable law.

135 The respondent argued that Shaw v. Deputy Head (Department of Human Resources and Skills Development), 2006 PSLRB 125 (“Shaw”), is not applicable when dealing with the issue of union immunity involving public servants. In adopting private-sector jurisprudence without qualification, Shaw treats the government employer as an employer like any other. It pushes aside a wide body of jurisprudence concerning public criticism of the government by public servants and takes the position that Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 (“Fraser”),is not engaged. The effect is to disturb the delicate balance between expression and loyalty required of public servants, as established by the Supreme Court of Canada. It replaces the Fraser test for public criticism with a lower threshold.

136 The three-pronged test in Fraser establishes when a public servant may publicly express criticism of his or her employer. First, the comments must fall within the exceptions stated as follows, at paragraph 41:

… in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability…

Second, the employee must exhaust all internal redress procedures. Finally, the employee must establish that the statements are true.

137 The private-sector line of cases embraced by Shaw establishes a lower threshold. Public criticism is acceptable so long as the employee is acting within the scope of his or her union duties in making the statement and provided that the statements are not malicious or knowingly or recklessly false.

138 The question that must be asked is the following: “In striking a balance between expression and loyalty, are there factors when government is the employer that are not present, or not present to the same degree, when government is not the employer?” The Supreme Court answers that question in Fraser.It paid less attention to general principles of the employer-employee relationship and placed more emphasis on the appellant being a public servant. The Court paid particular attention to the importance of maintaining public confidence and the confidence of the government. The Court noted as follows, at paragraphs 42 and 43:

… there is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service. The benefits that flow from this impartiality have been well-described by the MacDonnell Commission. Although the description relates to the political activities of public servants in the United Kingdom, it touches on values shared with the public service in Canada:

… if restrictions on the political activities of public servants were withdrawn two results would probably follow. The public might cease to believe, as we think they do now with reason believe, in the impartiality of the permanent Civil Service; and Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates…

…

43  There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.

139 Adopting the private-sector jurisprudence without reservation ignores the fundamentally different considerations that apply to government as an employer. In government, a much narrower scope of union immunity is required.

140 The limitations of union immunity should be as described as follows in Stewart v. Treasury Board (Department of Supply and Services), PSSRB File No. 166-02-2000 (19750812), subsequently affirmed in Stewart v. Public Service Staff Relations Board, [1978] 1 F.C. 133 (C.A.):

…

… the right to criticize exists “within the ambit of the legislation” – the Public Service Staff Relations Act. The Act is concerned with the sphere of collective bargaining in respect of terms and conditions of employment, including provision for a grievance process and an adjudication system. It is not concerned with Government programmes or policies or how departments are to be organized, re-organized or administered…

…

See also Samson v. Canada Post Corporation (1987), 71 di 215, at page 7.

141 The Alberta Court of Queen’s Bench stated the following in a judicial review of Alberta v. Alberta Union of Provincial Employees, Local 6 (1996), 57 L.A.C. (4th) 400, as quoted in Alberta Union of Provincial Employees v. Alberta, [2000] A.G.A.A. No. 57 (QL):

…

There is nothing inherent to union officials as employees of an employer to make them less responsible for what they say about their employer. They owe a duty of fidelity to their employer. In circumstances like the one at hand, it is only when they are legitimately acting in the role as a bargaining agent or in true union activities in relation to the collective bargaining relationship that critical statements receive limited protection.

…

142 To the extent that an employee makes a statement, in whole or in part, outside the scope of activity described above, he or she cannot claim the benefits of union immunity. Such an approach maintains the delicate balance established in Fraser and consistently maintained by the Federal Court and the Federal Court of Appeal.

143 Union officials are afforded protection to advance the interests of their members on the issues identified in Stewart, subject to the limitation that the statements not be malicious or made without regard for the truth or with a reckless disregard for the truth. To extend that protection further, under the thin veneer of representation, allows the union-immunity principle to be abused.

144 The respondent maintained that allegations of wrongdoing fall outside the scope of union-immunity protection. Unlike advocating for improved hours of work or higher wages for bargaining unit members, an allegation of wrongdoing is an individual allegation based on the individual’s perceived understanding of the facts. By its very nature, such an allegation is not representational but individual. In the case at hand, it is clear from both the form and content of the September 7, 2006 email that the grievor was writing in an individual capacity.

145 When an employee makes an allegation of wrongdoing, whether or not he or she is a union representative, he or she enjoys all the protections that exist at law, provided that the employee follows the established procedure for disclosure. However, he or she cannot claim the additional protection of union immunity. There is not one set of rules for disclosure of wrongdoing for one group of employees and another set for employees occupying a union office. The issue of union immunity is a red herring in the context of public statements that, in whole or in part, raise allegations of wrongdoing.

1. Applying the Fraser test

146 The respondent contended that I must uphold the discipline unless the grievor meets each element of the Fraser test.

147 Do the grievor’s allegations fall within the Fraser exceptions? The vast majority of the grievor’s comments deal with alleged policy and management issues rather than issues that are of the nature identified in Fraser. There is no question that they affect the grievor’s “… ability to perform effectively the duties of a public servant or on the public perception of that ability.” The respondent submitted that direct evidence of impairment “in the wider sense” discussed in Fraser, at paragraphs 46-48, is not necessary given the groundless nature of the grievor’s comments along with the vindictive manner in which he alleged harassment, incompetence and a lack of integrity on the part of senior officials; see also Stewart, [1978] 1 F.C. 133 (C.A.); Chopra v. Canada (Treasury Board), 2005 FC 958, at para 39; Chopra v. Canada (Treasury Board), 2006 FCA 295, at para 12; and Tobin v. Canada (Attorney General), 2009 FCA 254, at para 60 and 62.

148 The grievor attacked his own employer and levelled serious allegations against senior management at the CBSA. In addition to the email itself, the evidence of Mr. Sheridan and Ms. Hébert is clear that the email had an immediate and direct impact on their abilities to trust and work with the grievor in the future.

149 Did the grievor exhaust all internal redress procedures — the second prong of the Fraser test? The requirement to exhaust all internal redress procedures before taking criticism into the public realm is well established, as stated in Ministry of Attorney General, Corrections Branch v. British Columbia Government Employees’ Union (1981), 3 L.A.C. (3d) 140, at p. 163:

… the duty of fidelity does require the employee to exhaust internal "whistle-blowing" mechanisms before "going public". These internal mechanisms are designed to ensure that the employer's reputation is not damaged by unwarranted attacks based on inaccurate information. Internal investigation provides a sound method of applying the expertise and experience of many individuals to all problems that may only concern one employee. Only when these internal mechanisms prove fruitless may an employee engage in public criticism of his employer without violating his duty of fidelity.

See also Forgie v. Treasury Board (Immigration Appeal Board), PSSRB File No. 166-02-15843 (19861119). Even in cases involving the union immunity defence, the duty to raise matters internally has been recognised: Alberta Union of Provincial Employees v. Alberta, at page 13.

150 The evidence is clear that the grievor had access to recourse before sending his email. The grievor challenged management’s orders to destroy the Kingman spreadsheet information in his complaints with the former Board. The grievor’s issue was squarely dealt with in King and Waugh, and remedial action was granted. Quite simply, the matter was resolved. The only issue not addressed was the grievor’s request for a declaration that the Criminal Code was violated.

151 The grievor raised the issue of criminality with the RCMP in 2002. The RCMP told him that it did not consider it a criminal matter and that it would not pursue a criminal investigation (Exhibit R-2).

152 The grievor also attempted in fall 2002 to have criminal information laid before a justice of the peace. That attempt was dismissed by the Court (R-1, tab 26). The grievor’s rationale for going to a justice of the peace raises serious issues of credibility. He suggested that his reason was to protect the Kingman spreadsheet. However, the evidence is that he was permitted to leave a copy of the spreadsheet with his lawyer. The grievor was not sure whether the version of the spreadsheet given to Mr. Waugh was different. However, had his true purpose been to protect the Kingman information, he could have also left a copy of the Waugh version with his lawyer until the former Board resolved the matter. When asked why he did not appeal the decision of the justice of the peace, he referred to the cost of the transcript. That admission shows that the matter was not a union issue; otherwise, the union would have provided financial support. Instead, the grievor’s efforts were a personal vendetta against Mr. Sheridan and Ms. Hébert.

153 Not satisfied with the RCMP’s opinion, the justice of the peace’s ruling or the King and Waugh decision in January 2005 that upheld his complaints, the grievor continued his crusade to have Mr. Sheridan and Ms. Hébert prosecuted criminally. He spoke to the Peel Regional Police about his allegations of criminality sometime after the King and Waugh decision. He raised the same issues of criminality with Mr. Jolicoeur in March 2005 (Exhibit R-1, tab 5) that had been dismissed by the justice of the peace three years earlier. Mr. Jolicoeur asked Mr. Derouin to investigate. The grievor failed to provide Mr. Derouin with specifics, choosing instead to raise the same issues through the rest of 2005 and in 2006 in a series of letters and emails directed to two prime ministers and several senior members of cabinet (see specifically Exhibit R-1, tabs 12, 13, 17, 18, 26 and 28).

154 The grievor was advised on a number of occasions that he could pursue his concerns under the Disclosure Policy. Mr. Derouin told him so in May 2005 (Exhibit R-1, tab 11). In June 2006, Mr. Herd identified the CBSA’s senior disclosure officer in response to the grievor’s request for that information (Exhibit R-1, tab 26). In July 2006, the grievor wrote to the Prime Minister and other ministers indicating that he intended to exercise his rights under the Disclosure Policy should they not investigate (Exhibit R-1, tab 28). However, he never followed the internal CBSA process or the PSIO process before sending his email to the media, a point borne out by Ms. Mombourquette and confirmed by the grievor himself.

155 The grievor’s email presents itself to the objective reader as a whistle-blowing letter aimed at exposing serious wrongdoing at the CBSA. The grievor, in fact, specifically mentions a breach of a “… code of ethics and values …” The Disclosure Policy defines “wrongdoing” as follows:

Wrongdoing … is defined as an act or omission concerning:

(a) a violation of any law or regulation; or

(b) a breach of the Values and Ethics Code for the Public Service; or

(c) misuse of public funds or assets; or

(d) gross mismanagement; or

(e) a substantial and specific danger to the life, health and safety of Canadians or the environment.

156 The respondent submitted that the grievor failed to exhaust internal redress procedures before writing to the media with very broad allegations of wrongdoing. All the allegations raised in the grievor’s email could have been raised under the Disclosure Policy, including recourse to the PSIO. The grievor’s attempt to rebrand those comments as exposing criminality, and therefore falling outside of the policy, does not pass scrutiny, as the wording of the email is clearly aimed at matters that are wrongdoing as defined in the policy. Because the grievor failed to exhaust the internal redress mechanisms available to him before taking his allegations to the media, his comments warrant a disciplinary response.

157 Did the grievor establish that the statements made in his email of September 7, 2006 were true — the third prong of the Fraser test? The case law is clear that the burden is on the grievor to establish that each statement is true. However, given the grievor’s silence through the disciplinary investigative process, it is not now open to him to raise a justification for these statements for the first time at adjudication: Goyette and Guidon v. Treasury Board (Unemployment Insurance Commission, Department of Manpower and Immigration), PSSRB File Nos. 166-02-2914 and 2915 (19770712), at page 2; Skibicki v. Treasury Board (Environment Canada), PSSRB File No. 166-02-20723 (19910116), at pages 6-7; and Cléroux v. Treasury Board (National Defence), PSSRB File Nos. 166-02-25038, 25683 to 25686, 25697, 25698 and 26110 to 26112 (19970423), at pages 114 and 116.

158 The grievor was asked for the specifics of his allegations and failed to provide them. The failure to explain one’s action crystallizes during the disciplinary process and cannot be remedied in the grievance process. It is not for the respondent to cobble together the grievor’s explanation. The grievor had an obligation to explain, if he wanted to provide a rationale for his comments. The grievor failed to explain. Employees are under a duty to cooperate in disciplinary investigations. They should not be permitted to provide exculpatory evidence at adjudication that they withheld during a disciplinary investigation. See Naidu v. Canada Customs and Revenue Agency, 2001 PSSRB 124, at page 19, cited with approval in Ayangma v. Treasury Board (Department of Health), 2006 PSLRB 64; and Francis v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-02-24111 (19931007), at page 16.

159 The evidence is also clear that the grievor did not participate meaningfully in the grievance process.

160 The ultimate issue for adjudication is whether the respondent had cause for discipline when discipline was imposed. It is not open to the grievor to try for the first time to provide a detailed explanation of his comments in the email of September 7, 2006 at adjudication because he failed to do so throughout the entire process. (The respondent maintained that the same principles apply with equal force if the adjudicator chooses the Shaw test.)

161  Should the grievor be permitted for the first time at adjudication to provide a rationale for each of his allegations, the respondent argued that the burden of establishing the truth rests on him, as noted by the Federal Court of Appeal in Grahn v. Canada (Treasury Board), [1987] F.C.J. No. 36, (QL)(C.A.) at page 2. See also Haydon v. Canada (Treasury Board), 2004 FC 749, at para 62, and 2005 FCA 249; Read v. Canada (Attorney General), 2006 FCA 283, at para 48; and Labadie v. Deputy Head (Correctional Service of Canada), 2008 PSLRB 85, at para 224, 225, 232 and 233.

162 The adjudicator should weigh what the grievor wrote, not what he now says was his intention in writing it. As noted in the testimony of Mr. Sheridan and Ms. Hébert, the grievor’s allegations are baseless and untrue. He failed to establish their truthfulness. Therefore, the respondent submitted that the grievor’s allegations warranted a disciplinary response.

2. In the alternative — applying the Shaw test

a. Was the grievor acting within his role as a union official?

163 The respondent submitted that an analysis of both subjective and objective factors helps distinguish between communications sent in an individual capacity and those sent as a union official. That analysis shows clearly that the grievor did not send his September 7, 2006 email in his union role.

164 The form of the September 7, 2006 email is distinct from other communications in which the grievor clearly identified himself as a union representative. The evidence is clear that the grievor used his signature block identifying him as a union official when he wrote in his union capacity (see, for example, Exhibit R-1, tab 26 and the Ridge letter). He did not do so in the September 7, 2006 email. The respondent acknowledged that the addition of a union title does not by itself prove the basis for union immunity: King v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 64 (“King (PSLRB)”). Nonetheless, the grievor’s past practice of using his title is relevant to understanding his intent when he wrote his email.

165  The email was written in a voice that suggests that the grievor was communicating as an individual. A reasonable observer would also judge that its overall content shows that he was not writing as a representative but in a personal capacity. When the grievor wrote of senior management at the CBSA ruining his career, he clearly identified that he was writing as an employee. Nothing in the email informs the media recipients either that he was a union representative or that he was speaking on behalf of the union.

166 The respondent further submitted that I should draw a negative inference from the grievor’s failure to call any union official to confirm that the subject of the email was a union issue and that the grievor was operating within the scope of his union role in sending it: see Brown and Beatty, Labour Arbitration in Canada, Canada Law Book, August 2005, at 3:5120.

167 In King (PSLRB), at paragraph 128, the grievor distinguished between whistle-blowing and representing his members as follows:

128    The root issues in this case, according to the grievor, are his right to represent his members and his constitutional right to freedom of expression. The Fraser line of decisions about “whistle-blowing” is thus not helpful. The subject matter before me is union expression or union free speech, and the case should appropriately be decided by reference to the case law summarized in Shaw.

[Emphasis added]

In this case, the grievor did not even purport to represent his members, as he did in the Ridge letter.

168 The grievor suggested that everything falls within that immunity because he was a full-time representative. Such an approach would render the first part of the Shaw test meaningless. Instead, what the jurisprudence requires is a reasonable reflection on the tone and content of the communication.

169 Furthermore, the grievor’s role as a union local president was not a paid position. He was not on a leave of absence and employed by the union, as was the case with Mr. Moran. The grievor was at all times an employee of the CBSA and, paid by the CBSA. He had a supervisor and was subject to the requirements to docket his time, tell his supervisor when he was sick and request permission to take leave.

170 Mr. Derouin testified that, in his dealings with the grievor about the allegations of criminality, he was not under the impression that the grievor was acting as a union representative. Asked in cross-examination why he had that impression, he responded that he “… would expect that a union representative would have some endorsement by the union.” He indicated that both sides suggested agenda topics for labour-management meetings at the executive level but that the grievor’s allegations were never on the agenda. Mr. Gillan confirmed that the bargaining agent did not raise the concerns expressed by the grievor in his September 7, 2006 email.

171 According to the respondent, it is again important to note that the grievor never raised the union immunity defence during either the disciplinary investigation or the grievance process, as substantiated by Ms. Mombourquette’s testimony. The respondent maintained that he cannot raise that issue for the first time at adjudication: Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.). Moreover, the fact that the grievor did not raise the union immunity defence suggests that even he did not believe that he was acting in a union capacity when he wrote the email. Even in his grievance (Exhibit R-1, tab 40), the grievor did not mention that he was acting in a union role. Instead, he asked in his grievance “[t]hat appropriate action be taken immediately, that will ensure my rights and employee rights to procedural fairness are protected and no longer violated by CBSA management.” Those comments suggest that the grievor viewed his actions as those of an employee, not a union representative.

172 The grievor’s own testimony in cross-examination was telling. He stated as follows:

I do not feel I did anything to feel sorry about. I was doing my duty, the allegations – the subject of the email was already in the public domain – I followed up on a private e-mail to five recipients …

[Emphasis added]

Characterizing his email as a “… private email to five recipients …” determines the issue. Clearly, the grievor was off-script and honestly characterized the email as he originally intended it — a “private email.”

173 In summary, the evidence did not establish that the first branch of the Shaw test was engaged.

b. Were the grievor’s comments malicious?

174 In the alternative, the grievor’s comments were malicious. Black’s Law Dictionary defines “malicious” as follows:

Characterized by, or involving, malice; having, or done with, wicked, evil or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse or as a result of ill will.

175 Contrary to the grievor’s suggestion that his motive in sending the email was “… an attempt to get someone to look at this … .”, the evidence shows that he had access to an internal CBSA process for disclosure and to an investigatory process outside the CBSA (the PSIO) but never took advantage of either option. His intention was not to “… get someone to look at this …” but to inflict as much harm on the respondent’s reputation as possible, confirmed by his decision to go to the media. The grievor hoped that the media would follow up.

176 The tone of the email reflects a clear disdain for management. The grievor’s use of the terms “disgrace” and “secret” distort the truth to such an extent that they had to be motivated by malicious intent. The email seeks to suggest to a reasonable person that clear conclusions about the grievor’s allegations could be drawn based on the evidence. The facts show that there was no such evidence. Had it existed, the grievor could have provided it to Mr. Derouin, after being repeatedly asked. The grievor could have provided the evidence using the Disclosure Policy to initiate an investigation. He could have presented it during the disciplinary investigation. Once more, there was no such evidence, and the grievor suggesting that it existed was malicious.

177 The allegations in the email are serious. They suggest that there are systemic problems within the CBSA, that senior management lacks honesty and integrity and that they had taken reprisal action against the grievor for exposing wrongdoing. Those allegations are completely fictitious. The grievor carefully constructed the email to cause as much harm as possible.

178 The respondent cited National Steel Car Ltd. v. United Steelworkers of America, Local 7135 (2001), 101 L.A.C. (4th) 316, at pages 11 and 13, as follows:

…

… some distinction should be made between internal and external speech and conduct. Thus, where an employee/official, acting within the scope of his/her authority as a Union official, engages in abusive speech in a closed door meeting, he/she may be immune from discipline. However, speech or statements made outside to third persons, such as the press, by a Union official, may attract discipline only if the speech or conduct is malicious or reckless.

…

… The Union is a party to the Collective Agreement and Union appointees are required to act reasonably in performing their duties under the Collective Agreement. The grievor's conduct was malicious, unreasonable and in bad faith. He failed to demonstrate an understanding of the proper role of a Union official under the Collective Agreement.

…

[Emphasis added]

The respondent emphasized that the arbitrator in National Steel Car Ltd. assigned the burden to the grievor of establishing the truth of the statements that the employer alleged were malicious: see also Cassellholme, Home for the Aged v. Canadian Union of Public Employees, Local 146 (2004), 128 L.A.C. (4th) 425, at pages 434 to 436.

c. Did the grievor knowingly make untrue statements, or was he reckless with the truth?    

179 In the event that I find that the grievor’s email was malicious, the respondent argued in the further alternative that the grievor’s allegations were made knowing that they were untrue or that, at a minimum, he was reckless with the truth.

180 All employees, including union representatives, are required to raise allegations of wrongdoing through the disclosure procedures in place. The grievor’s failure to do so, after having inquired as to with whom he should raise such allegations, shows that he was reckless with the truth. Furthermore, Mr. Sheridan and Ms. Hébert testified that the comments made in the email were completely inaccurate.

181  The grievor is playing a shell game. The theory of his case is that he sent the email because he wanted someone to look into the allegations. However, the specific allegations in the email could all have been investigated by the PSIO. Allegations of harassment could have been addressed under the harassment policy. Concerns over occupational health and safety could have been addressed under Part II of the Code. Concerns over his career could have been addressed under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13, or under the Act as a grievance or an unfair labour practice complaint. The grievor chose not to use those avenues but to raise his allegations with the media.

182 At the hearing, the grievor tried to argue that none of those options was open to him because his allegations were about criminality. Notably, the grievor did not mention criminality in his email. When he wanted to allege criminality, the evidence is clear that he did so specifically, and in great detail, citing specific provisions of the Criminal Code. Furthermore, there is no evidence of a violation of the Criminal Code. The grievor went to the provincial court. His attempt to initiate a criminal prosecution was dismissed because the court deemed his issues a labour relations matter. The grievor did not appeal the decision. The labour relations matter was then addressed in the King and Waugh decision. Even if we accept the grievor’s attempt to rebrand his concerns as involving criminality, it is clear that his pursuit of Ms. Hébert and Mr. Sheridan on that dimension was malicious and that his allegations were reckless with the truth.

183 The respondent argued that the principles outlined in Corporation of City of Brampton v. Amalgamated Transit Union, Local 1573 (1989), 7 L.A.C. (4th) 294, are equally applicable to the facts in this case. The grievor’s comments went well beyond what is recognized as acceptable. His allegations of systemic wrongdoing, cover-up and retaliation were completely without foundation and wildly irresponsible: see also Amoco Fabrics Ltd. v. Amalgamated Clothing and Textile Workers Union, Local 1606 (1984), 17 L.A.C.(3d) 425.

184 In his testimony, the grievor did not attempt to justify all the allegations in the email. He was silent on key points. He did not try to explain why he called senior officials a “disgrace” and never explained how his career was ruined or how he was “… continually being abused by those trying to keep everything secret.” The respondent submitted that the grievor made his allegations knowing that they were untrue or that, at a minimum, he was reckless with the truth.

3. The disciplinary penalty

185 The purpose of discipline, short of termination, is to correct behaviour. The quantum of discipline must be sufficient to send the message to the employee that his or her actions are inappropriate. The reasonableness of the penalty relates to the seriousness of the misconduct. In this case, the grievor was not content merely to criticize his employer but went one step further to call into question the honesty and integrity of the very people for whom he works. The grievor’s comments express disdain for management; see Grahn v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-15093 and 15094 (19850912), at page 6; and Forgie, at page 24.

186 It is well established that the grievor has the burden of establishing mitigating factors: Wilson v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-25841 (19950301), at page 4. It is also well established that the most important factor in searching for mitigation is whether an employee expressed understanding and remorse when the concerns over his or her behaviour were first brought to his or her attention: Naidu, at page 19, cited with approval in Ayangma; Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, at para 180, 184 and 191; and Way v. Canada Revenue Agency, 2008 PSLRB 39, at para 102 and 109. The grievor completely failed to show any understanding or remorse throughout the entire process. In fact, shortly after the discipline was imposed, the grievor wrote to the CBSA indicating that he continued to stand behind the allegations that he made in the impugned email (Exhibit G-1, tab 30). During the third-level disciplinary meeting, he again stood behind his comments and suggested that Mr. Gillan owed him an apology (Exhibit R-12, at page 10). When asked at the hearing if, under similar circumstances, he would do it again, the grievor responded that it depended on the outcome of the hearing. He would do it again were the decision in his favour. Clearly, the grievor shows no understanding or remorse.

187 In this case, the grievor has a five-day discipline on his file for similar misconduct (Exhibit R-1, tab 24). A rigid application of the principle of progressive discipline, without considering aggravating factors and a lack of mitigating factors, would suggest that the appropriate discipline be set at 10 days. However, given the seriousness of the misconduct and the failure of the grievor to show any remorse, the respondent submits that 20 days is appropriate. It is also important to recall Mr. Gillan’s testimony that the 20-day suspension was “stand-alone” and not an application of progressive discipline. The respondent decided that the email was not a proper culminating incident but that it warranted a 20-day suspension as a “one-off” case. A 20-day suspension without pay falls within the range of reasonable sanctions for the behaviour in question.

B. For the grievor

188 The grievor’s oral arguments were supplemented by two written submissions tabled at the hearing, which are available on file. The first document argues the appropriate analytical framework for the case and outlines how the standards established to determine “union expression” disputes apply to the evidence in this matter. The second document examines the authorities cited by the respondent.

189 The following summary surveys the principal elements of the first document. It then reports further comments made by the grievor in oral submissions that I have found to be helpful. I have chosen not to cover the second document in this summary, but I have considered it in reaching my decision.

1. Written submission

190 Several distinct lines of jurisprudence have emerged to deal with cases where balancing an individual’s freedom of expression and the duty of loyalty owed to an employer is at issue. Whistle-blower cases examine situations in which an employee alerts the public to alleged wrongdoing by the employer. In union expression cases, a union official expresses concerns outside the workplace on behalf of the membership.

191 The grievor referred me to the following decisions, among others, involving whistle-blowing: Fraser; Chopra v. Treasury Board (Health Canada), 2001 PSSRB 23 (“Chopra”); Chopra v. Treasury Board (Health Canada), 2003 PSSRB 115, 2005 FC 958 and 2006 FCA 295; Forgie; Grahn,[1987] F.C.J. No. 36; Haydon v. Canada, [2001] 2 F.C. 82 (T.D.) and 2005 FCA 249; and Read.

192 The grievor submitted that this case is not about whistle-blowing. He worked full-time as an elected union official continuously from 1996. He was officially on leave from his position as a customs inspector at Pearson and had not worked in his substantive position or performed other duties for the CBSA for many years before the date of his email. He sent the September 7, 2006 email in his capacity as the president of the Toronto District Branch of the CEUDA. Its subject matter came within the scope of the grievor’s duties in that role. Specifically, the email dealt with important health and safety issues that were the subject of an ongoing campaign to promote public safety and the interests of CEUDA members with CBSA management, political leaders and the public at large. As such, the situation examined in this case clearly goes beyond that of an employee who publicly voices disagreement with the policies or practices of his or her employer.

193 In addition to his obligation of loyalty to his employer, the grievor’s role as a union representative carried with it a duty of representation owed to the members of the CEUDA that is integral to the labour relations scheme established by the Act. The law is clear that, to fulfill their roles, union officials must be able to candidly and openly challenge the employer in matters affecting the employees whom they represent. To do this effectively, union officials are accorded protection from retribution for raising concerns or speaking out publicly against an employer: Firestone Steel Products of Canada v. International Union, United Automobile, Aerospace and Agricultural Implement Workers, Local 27 (1975), 8 L.A.C. (2d) 164; and The Municipality of Metropolitan Toronto v. Canadian Union of Public Employees, Local 79 (1998), 70 L.A.C. (4th) 110.

194 In Shaw, the adjudicator adopted that approach, commenting as follows at paragraph 50:

[50] … the rationale for protecting bargaining agent representatives from discipline for statements critical of the employer unless those statements are malicious or false is that such representatives must be able to make the judgment that it is necessary to forego the ordinary level of deference to the employer in order to carry out a responsibility to represent employees forcefully and candidly…

The approach adopted in Shaw was also followed in King (PSLRB), which involved the grievor. On judicial review, the Federal Court of Canada affirmed King (PSLRB) in Canada (Attorney General) v. King, 2009 FC 922 (“King”).

195 The case law recognizes that both parties may resort to other strategies away from the bargaining table to influence the course of labour relations and collective bargaining, including communications with the public and the media: Canada Post Corp. v. Canadian Union of Postal Workers (1990), 12 L.A.C. (4th) 336; Burns Meats Ltd. v. Canadian Food & Allied Workers, Local P139 (1980), 26 L.A.C. (2d) 379; and Fugère v. Québecair (1987), 72 di 44. In Burns Meats Ltd., the arbitrator wrote as follows:

…

If union stewards are to have the freedom to discharge their responsibilities in an adversarial collective bargaining system, they must not be muzzled into quiet complacency by the threat of discipline at the hands of their employer.

…

196 In Samson, the Canada Labour Relations Board (CLRB) held that the “representation” of employees by a union includes not only representations to the employer but also to the public, and in any forum where the union feels it is in the interest of its members to do so. This broad interpretation of the scope of a union’s representational activities comports with the Supreme Court’s jurisprudence concerning the importance of public expression by unions: Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (“Pepsi-Cola”). In Chopra,the Board observed as follows at paragraph 93:

[93] … the public is the public wherever it sits and if a public servant is not violating his duty of loyalty to his employer when he or she is complaining of racism and discrimination before the CHRC, then there is no logical reason to say that he or she is violating his or her duty of loyalty when he or she is complaining of discrimination in front of the public at a conference.

197 In Pepsi-Cola, the Supreme Court held that free expression is particularly critical in the labour context. It wrote as follows:

…

34 … It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: KMart, supra. As Cory J. noted in KMart, supra, at para. 46: “it is often the weight of public opinion which will determine the outcome of the dispute”.

35      Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (see also R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70, and Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm.

36      This said, freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of the Charteris subject to justificative limits under s. 1.

37      The same applies in interpreting the common law to reflect the Charter. The starting point must be freedom of expression. Limitations are permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a free and democratic society.

…

See also British Columbia Public School Employers’ Association. v. British Columbia Teachers’ Federation, 2005 BCCA 393.

198 The test for balancing the duty of loyalty with the right of free expression in the context of expression by union officials, acting in their capacity as representatives of members of the bargaining unit under a statutory labour relations regime, was outlined by the CLRB in Samson at page 9, as follows:

…

… arbitration boards are of the view that union representatives can criticize their employers providing that statements made by employees who are union representatives are made in the course of their duties as union representatives and they must not be malicious in that they are knowingly or recklessly false.

…

199 Shaw affirmed the rationale for this standard at paragraph 41, as follows:

[41]    The value of this standard is that it makes it possible to take into account the realities of collective bargaining relationships. It is fundamental to such a relationship that those who speak for the bargaining agent chosen by employees to represent them must be able to raise questions about decisions made by the employer that affect the terms and conditions under which those employees work and must be able to challenge the wisdom or legitimacy of those decisions. The responsibility that an officer has to represent employees forcefully and candidly may sit uneasily with the duty of obedience and fidelity such an officer, like other employees, owes to the employer. This makes it necessary to articulate a standard of conduct that does not unfairly expose the officer to discipline for on occasion placing his duties towards the employees he represents ahead of deference to the employer. On the other hand, this standard makes it clear that no officer is shielded from the disciplinary consequences for making statements that are false or malicious.

200 The adjudicator in King (PSLRB) held that the CBSA failed to prove that the grievor’s behaviour fell outside the legitimate scope of union activity, even though the letter that led the employer to impose discipline contained politically sensitive criticisms of it. At paragraph 180, the adjudicator cited Pepsi-Cola for the proposition that, in assessing the conduct of union representatives, “… the presumption should be in favour of union free expression unless there is clear justification for interfering with that expression.” He noted that the Supreme Court’s ruling suggested “… a wider rather than narrower range of targets for union expression … .”

201 King (PSLRB) also examined the issue of “malice” and found that it requires more than ill will. The impugned statement must have been intended to do harm. Comments that are critical, but not knowingly or recklessly false, normally do not violate the “bright line test” summarized in Shaw, even if they are offensive to the employer.

202 King (PSLRB) expressly rejected the employer’s argument that the Fraser line of whistle-blowing decisions was applicable to cases of union expression, stating as follows:

…

225    The employer argues that I should also consider the case law led by Fraser in view of the alleged extreme nature of the grievor’s criticism of his employer and of his consequent violation of the duty of loyalty that he owed the CBSA.

226    I do not agree. The grievor’s status as a full-time elected union official is central to the circumstances of this case. The Fraser line of decisions does not address whether, or the extent to which, that status alters the legal principles at play. To that extent, Fraser and other decisions in that line can be distinguished.

…

On judicial review, the Federal Court in King expressly concurred with the findings in King (PSLRB) on that point at paragraph 9, as follows:

9 … I cannot accept that the adjudicator’s decision must be reviewed on the standard of correctness. Even if I were to conduct a review on that standard I would concur findings [sic] of the adjudicator as set out in his reasons at paragraphs 224 to 229 …

…

203 In this case, the grievor’s statements were not malicious and knowingly or recklessly false. Rather, his statements were intended to pursue the respondent’s alleged failure to address issues of legitimate concern to the union and its members. Specifically, the grievor’s comments concerned the integrity of relations between management and the bargaining agent, particularly in respect of matters related to the health and safety of customs officers and the public at large. The email was part of the grievor’s ongoing advocacy on behalf of the CEUDA that included communicating directly with government officials as well as with members of the media. The grievor’s comments expressed concerns that he and other union representatives had previously raised in a variety of contexts and that came within the union’s broader campaign of advocacy on a number of contentious issues. In particular, the email raised concerns about allegations of criminality, enhancing Canadian border security, the arming of border guards, and ensuring the appropriate use of video surveillance footage.

204 Despite the grievor’s submissions about the nature and impact of the comments, the fact that he had been on leave from his duties as a customs officer to work as a full-time union officer since 1996 is relevant in determining if his actions could have impaired his ability to perform his job as a public service employee. The respondent offered no evidence that the grievor’s statements damaged either his relations with his supervisor or the public’s perception of his capacity to fairly and impartially implement government policy.

205 In summary, the test set out in Shaw and subsequently applied in King (PSLRB) is the appropriate standard. The comments in the grievor’s September 7, 2006 email fall squarely within the scope of protected union expression. They were advanced in his capacity as an elected union officer while on full time leave of absence from his substantive position with the CBSA. The grievor’s comments were neither malicious nor knowingly or recklessly false. Accordingly, no proper basis was established by the respondent to support disciplinary action of any kind.

206 The record confirms that the CBSA assessed the grievor’s conduct on the mistaken assumption that the duty of loyalty articulated in the Fraser line of decisions was the guiding principle, as it did when it imposed a 30-day suspension in the King (PSLRB) case. That standard has no place in the context of union expression cases. Any attempt by the respondent to now distance itself from its acceptance of the Shaw test in King (PSLRB) is inappropriate, particularly given the Federal Court’s ruling on judicial review of that decision.

207 In the event that I find some element of misconduct in the grievor’s actions, the respondent submitted that I should consider the appropriate penalty in light of the respondent’s behaviour, including the Derouin investigation, and the fact that the grievor’s disciplinary record at that time, now revised, comprised one five-day suspension.

208 The grievor submitted that I should allow the grievance and grant remedial orders as requested.

2. Further oral arguments

209 The grievor submitted that it is not up to either the respondent or an adjudicator to second-guess the tactics that the grievor used to represent his members. Following the Shaw line of decisions, the grievor was entitled to do what he wished provided he did not cross the second aspect of the Shaw test, that is, provided that his comments were not malicious or knowingly or recklessly false.

210 The burden must fall to the respondent to prove that the grievor made comments that were malicious or knowingly or recklessly false because there is no doubt that the grievor was a full-time union representative at all times. There certainly was no reason for the grievor to believe that the respondent ever viewed him as someone other that an elected union official.

211 As in King (PSLRB), the “to whom” element is key in this case. The respondent disciplined the grievor because he copied his email to the media. He had made the same allegations repeatedly in the past, but they only became an issue for the respondent when the grievor contacted the media. As Mr. Burkholder wrote to the grievor on October 18, 2006 (Exhibit R-1, tab 36), the reason for Mr. Gillan’s disciplinary investigation was that the grievor “… chose to communicate with the media when you were aware that such action was in contravention of the Public Service Values and Ethics Code.”

212 Previous public statements by the CEUDA often made the same points about shameful actions, mismanagement and withholding the truth at the CBSA found in the grievor’s email (Exhibit G-1, tabs 31 to 35), and the tone of the email used the same “pretty standard” rhetoric found in the CEUDA media releases. To be sure, the respondent knew well that the September 7, 2006 email was “innocuous stuff.” The respondent departed from the principle of progressive discipline by reverting to a 20-day penalty for that reason.

213 The grievor challenged the respondent’s depiction of a number of aspects of the history of the case. With respect to the grievor’s visit to the RCMP in August 2002, he maintained that the evidence provides no confirmation that Mr. Ramnarace’s summary of the meeting was accurate (Exhibit R-2). In contrast, the report written by Sergeant McAllister entered into evidence at the King and Waugh hearing (Exhibit G-4), supports the grievor’s contention that his concern was to determine whether he might be charged for being in possession of documents “illegally obtained.”

214 The Provincial Court in Brampton did not dispose of the grievor’s allegations on their merits. The Court simply referred the grievor to the labour board. The grievor testified that the issues of criminal activity that he had raised were important to him. When told to go to the labour board, he did. King and Waugh also did not rule on the merits of the allegations of criminality. The Board simply stated that it had found it unnecessary to rule on those issues. The decision won an important point of principle for the grievor, but he still wanted to secure an investigation of possible criminal violations. That is why, six weeks after the Board issued King and Waugh, the grievor wrote to Mr. Jolicoeur (Exhibit R-1, tab 5), who in turn asked Mr. Derouin to determine what to do.

215 The grievor communicated with Mr. Derouin in good faith. He made his allegations clear to Mr. Derouin and provided supporting documents, including the King and Waugh decision, giving Mr. Derouin everything he needed to go forward with an investigation. Then, Ms. Hébert intervened on a Friday evening (Exhibit R-1, tab 10). On the morning of the first workday of the following week, Mr. Derouin shut the process down (Exhibit R-1, tab 11). He warned the grievor against making “unsubstantiated allegations,” a statement for which he had no basis, as he subsequently admitted at the hearing. He misrepresented the truth about his “investigation,” blaming the grievor for not offering any details to substantiate his allegations — a characterization that the grievor’s evidence refuted.

216 The grievor subsequently, and repeatedly, tried to raise his concerns at the most senior political levels, first with the Liberal government and then with the Conservatives, but was ignored every time. CBSA officials advised the government not to respond to the grievor, laying the blame on him for failing to provide details for his allegations (for example, Exhibit R-1, tab 15).

217 The grievor testified that he finally sent his email of September 7, 2006 because it was important to him that the respondent’s policies be followed. He wanted his members to be treated equitably and well. He believed that management must be held accountable for its obligations and that it must respect employees. The grievor stated that he was obliged to do what he did because he had to protect his members.

218 The grievor did not name anyone in his email. The allegations that he made in its first paragraph were the same ones he had been making all along, and he had a reasonable basis for them. After sending the email, he did nothing to follow-up.

219 The respondent maintained that the grievor was required, and failed, to use internal channels to pursue his concerns, particularly the disclosure options provided under the Disclosure Policy. The grievor insisted that it is not the respondent’s business to tell a union officer how best to discuss and pursue his business. The grievor had the right to go public provided that he did not violate the second part of the Shaw test.

220 The respondent attacked the grievor’s failure to attend the investigation meeting convened by Mr. Gillan. In his evidence, the grievor made it clear that he was prepared to cooperate, but he first wanted answers to a number of questions. The respondent never provided answers. In any event, the grievor participated in the grievance process and addressed the issues. Mr. Gillan testified that the grievor never mentioned his rights as a union official at the third-level hearing. However, Ms. Dhanjal’s notes of the meeting show otherwise.

221 The grievor submitted that, even if the Fraser line of decisions applies, the respondent must establish evidence that the grievor’s ability to perform his duties was impaired. In substance, the grievor’s duties were to perform the functions of a union representative. The respondent led no evidence that sending the email impaired in the least his ability to perform those functions. Unlike the situation in Fraser, the grievor’s comments were not broadcast. The respondent did not demonstrate a scintilla of harm caused by the email. Nothing happened. There was no evidence that the media sources ever saw the email.

222 Without prejudice to his position that no discipline was warranted, the grievor suggested that I also must take into account what he alleges to have been misconduct on the part of the respondent in weighing any disciplinary penalty. Examples of that misconduct, according to the grievor, were the manner in which Mr. Derouin dealt with the grievor’s request for an investigation, Ms. Hébert’s intervention into that process and the respondent’s efforts to ensure that ministers were advised not to initiate any follow-up in response to the grievor’s representations to them. The grievor submitted that the nature of the purported misconduct warranted a reprimand, at most.

C. Respondent’s rebuttal

223 Pepsi-Cola is problematic because the countervailing interest examined by the Supreme Court was not the duty of loyalty, a fundamental element in the balance that decisions such as Fraser and Read address.

224 With respect to the findings in King, it is important to note that the Federal Court applied reasonableness as the standard of review. It did not examine whether the decision was correct. Had the court considered King (PSLRB) using the standard of correctness, the respondent contended that the result would have been different. As to the burden of proof, King was rendered in the context of the respondent conceding that it had the onus. The respondent now believes that its concession was wrong.

225 The grievor’s ability to perform the duties of his position was impaired when he sent the email. Both Mr. Sheridan and Ms. Hébert were consistent in maintaining that the grievor violated the level of respect required for his role as a union representative. The impact on the workplace of what he did was obvious.

226 The grievor did not raise the issue of union immunity at the third-level hearing. Ms. Dhanjal testified that she interpreted the grievor’s comments about “ample case law” as addressing the role of the bargaining agent in the grievance consultation process. Nonetheless, Mr. Gillan did consider the grievor’s role in determining how to respond and concluded that the grievor acted outside that role.

227 The CEUDA media releases are fundamentally different in nature and are not relevant. Even if those releases use similar words, the grievor did not have carte blanche to make his comments, especially without identifying himself as a union representative. The CEUDA documents might prove that similar allegations were made by the bargaining agent, but they do not prove their truthfulness.

228 Among the further points made by the respondent in rebuttal were the following: (1) the grievor’s pursuit of criminal allegations was more reflective of a personal vendetta than any union role; (2) both Mr. Derouin and Ms. Hébert testified that her email to him was not intended to shut down the investigation; (3) Mr. Derouin sent the grievor’s allegations to an IAD investigator, who concluded that there were insufficient details to proceed; (4) all the comments in the September 7, 2006 email were covered by the definition of “wrongdoing” in the Disclosure Policy; (5) the grievor’s reference to his union role in his email to Mr. Burkholder did not satisfy the requirement that he squarely mount his defence during the grievance process; and (6) with respect to the issue of impairment, it is important to note that a union local president could return to duty if not re-elected.

IV. Reasons

229 Mr. Gillan’s letter, dated November 2, 2006, stated the ground for awarding a 20-day suspension without pay, as follows (Exhibit R-1, tab 39):

…

The fact that you disseminated unsubstantiated allegations, which were critical of your employer, to members of the media is a serious breach of conduct and is in contravention of the Values and Ethics Code for the Public Service… .

…

Holding the respondent to that stated reason, my task is to decide whether the respondent has proven that, on a balance of probabilities, the grievor’s action —sending the September 7, 2006 email to the media — was misconduct that warranted discipline. If the respondent has met that burden, I must assess whether a 20-day suspension without pay was the appropriate penalty.

A. Shaw v. Fraser

230 The parties fundamentally disagree whether this case is about whistle-blowing or union expression. The respondent argued that the grievor was whistle-blowing when he sent his email and that the Fraser line of decisions applies as a result. The grievor maintained that the case concerns the freedom of union officials to criticize the employer in public and that Shaw governs.

231 While I am guided in these reasons by the Federal Court’s decision affirming the application of Shaw in King (PSLRB), I must remain open to the possibility that the circumstances of this case are different from the situations examined in King (PSLRB)and in Shaw, that the legal principles may apply differently, or that perhaps other legal principles come into play.

232 The essence of the respondent’s pleadings is that the case law underlying Shaw considered the question of the balance between freedom of expression and the duty of loyalty owed to an employer in a context substantially different from government. According to the respondent, Fraser established that there are factors when government is the employer that are not present, or not present to the same degree, in private-sector employment. To ignore those factors is to “… disturb the delicate balance between expression and loyalty required of public servants, as established by the Supreme Court of Canada.” Shaw should not be used because it gives broader scope to union immunity than is appropriate in the core public sector given the unique attributes of government employment.

233 With respect, the respondent’s arguments have not persuaded me. The Fraser line of decisions remains compelling in finding that “… the characteristics of impartiality, neutrality, fairness and integrity …” inherent to government employment require standards of behaviour that are different from, and more exacting than, those that apply in private employment when it comes to public criticism of the employer. However, those standards of behaviour examine what an employee must do, or refrain from doing, within the functions of his or her government position. The Fraser line of decisions does not consider the application of the standards when an employee steps outside his or her government role — temporarily or full-time — and takes on the responsibilities of union representation as authorized by statute. The respondent in effect argues that the basic legal principles remain the same in that scenario while conceding that it may be appropriate to allow some greater freedom of expression in the case of a public servant who acts as a union official.

234 In the absence of explicit guidance from the Supreme Court on applying the Fraser test to government employees who act as union representatives, I remain persuaded that I must take into account the Supreme Court’s general comments about union freedom of expression in the more recent ruling in Pepsi-Cola. Although that case examined the legality of secondary picketing in a private-sector labour dispute, the Supreme Court took the opportunity to underline more generally the importance of freedom of expression in the labour context. It wrote as follows:

…

33      Free expression is particularly critical in the labour context. As Cory J. observed for the Court in U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, "[f]or employees, freedom of expression becomes not only an important but an essential component of labour relations" (para. 25). The values associated with free expression relate directly to one's work. A person's employment, and the conditions of their workplace, inform one's identity, emotional health, and sense of self-worth: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; KMart, supra.

34      Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, like the duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives of workers even outside their working hours. Expression on these issues contributes to self-understanding, as well as to the ability to influence one's working and non-working life. Moreover, the imbalance between the employer's economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 92, per Iacobucci J. Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance. It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: KMart, supra. As Cory J. noted in KMart, supra, at para. 46: "it is often the weight of public opinion which will determine the outcome of the dispute".

35      Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (see also R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70, and Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm.

…

I am unable to discern anything in the Supreme Court’s comments about protecting union freedom of expression that would suggest that they should not apply with equal force in government employment when public criticism of the employer by a union representative is the issue. Indeed, at least two of the authorities that the Court cited in forming its views involved the public or para-public sectors. The role of union representatives in and outside of government is essentially the same. They stand generally in the same relationship to their employer, although the scope of their activities may be somewhat differently prescribed in their governing statutes. If anything, there is an argument to be made that the freedom of public expression addressed by the Supreme Court is even more important to a union representative facing a government-employer that enjoys privileged access to public communication strategies.

235 Referring to Pepsi-Cola, I observed as follows at paragraph 180 of King (PSLRB):

180 … I read the Court’s decision as … relevant in its more general finding that the presumption should be in favour of union free expression unless there is clear justification for interfering with that expression. While the Court does not define what the full scope of free union expression includes, its reasoning suggests, I believe, that a wider rather narrower range of targets for union expression is possible, provided that the expression relates to the union’s representational mandate and does not otherwise comprise conduct that may be impugned for other legal reasons.

The advantage of Shaw is that it provides a comprehensible test to determine whether an employer is justified to interfere with free expression in the labour context. It provides specific parameters for analyzing the extent of union immunity from discipline that are not available in Fraser. In my reading, Shaw still allows an adjudicator to consider the context of employment when applying its two-part test but without foreclosing the application of the test to an entire sector.

236 For those reasons, I conclude that it is proper to apply the Shaw test to this case. If examining the first element of the Shaw test leads me to conclude that the grievor was not acting in an official union capacity when he sent the September 7, 2006 email, he will not be entitled to the degree of immunity from discipline that Shaw affords. Fraser will apply. If my analysis results in a finding that the grievor was acting in an official union capacity, then I must proceed to the second element of the Shaw test.

237 For reasons that will become evident, I have not felt it necessary to address the respondent’s additional submission that the grievor is not entitled to advance a union immunity argument in this case because of his alleged failure to do so during the grievance procedure. I also do not believe that I need to consider whether the doctrine in Burchill restricts what the grievor was entitled to argue at the hearing.

B. Was the grievor acting in his official union capacity?

238 Applying the first element of the Shaw test requires that I determine whether the grievor acted in his official union capacity when he sent the email or, quoting the respondent’s written submission, was on a “frolic all his own.”

1. Who has the burden of proof?

239 While the respondent accepted that it has the burden of proof to establish its allegations of misconduct on a balance of probabilities, it contended that it was the grievor’s burden to establish the “positive defence” that he was acting in a protected union capacity in sending the September 7, 2006 email. It cited as principal supporting authorities M. Gorsky et al., Canadian Labour Arbitration and the Board’s decision in Kelly.

240 I do not agree with the respondent’s position. After examining the authorities cited, I am not satisfied that the grievor can be viewed as arguing a specific positive defence along the lines that Gorsky describes or that may have been offered in Kelly. In the types of situations outlined by Gorsky (none of which involve grievors in elected union roles), certain facts specific to a case can excuse a grievor from being found culpable for what would have otherwise have been misconduct. For example, disobeying an order to work overtime could escape discipline if the grievor can show that the overtime order was illegal. In Kelly (also not involving an employee representing union members), a correctional officer eventually admitted his misconduct but argued that he acted out of fear after being threatened by another inmate who was later revealed to be working undercover for the RCMP. In the context of the information that the grievor received in his dealings with the undercover informant, he submitted that his misconduct should not attract discipline.

241 Arguing a positive defence is somewhat akin to claiming mitigation. As such, it is appropriate that the party advancing a positive defence prove its basis. It seems to me that the situation of a union official performing representational functions is quite different. The Act envisages a range of activities under the rubric of “representation.” Those activities contribute to the purposes of the legislation and should on their face be presumed legitimate. To require a person who represents a bargaining agent, particularly someone who does so on a full-time elected basis, to prove a specific positive defence of union immunity seems to derogate from the presumption of representational legitimacy that is basic to the operation of the statute. While I can accept that a grievor may initially have to offer prima facie proof of his or her union role or that he or she was involved in “representation” in the circumstances of a case, going further would be problematic.

242 If I adopted the respondent’s position on the burden of proof, it would open the possibility that union representatives would be routinely required to prove the bona fides of their representational activities in any case where an employer reacts to their public representations, with which it disagrees, by imposing discipline. In effect, it would establish a general class of situations where the normal burden to prove the basis for discipline is modified or reversed. In my view, the concept of a positive defence normally involves considering exceptional factual circumstances, and it is not intended to apply generally to an entire class of situations. In the context of discipline, it fits best where there are facts specific to an individual case that lead a grievor to defend his or her actions once the employer has otherwise proven just cause for discipline. If it were appropriate instead to modify or reverse the burden of proof for a general class of discipline cases by requiring union officials to mount a positive defence, then perhaps there should be an explicit basis for that requirement in the Act, as there is elsewhere where the burden of proof is explicitly reversed.

243 In short, the respondent has not convinced me that the case law requires the grievor, as a union official, to prove a positive defence. As in King (PSLRB), I find that the burden falls on the respondent to establish through the evidence that the grievor was not acting in his official union capacity in the circumstances of this case as part of its overall burden to establish just cause for the discipline imposed.

2. Has the respondent proven that the grievor was not acting in an official union capacity?  

244 The grievor was president of the Toronto District Branch of the CEUDA from 2005 to 2007. At all times material to this case before 2005, he also held elected full-time office with the CEUDA. The evidence indicates that he was continuously on authorized leave with pay from his position at Pearson, other than when on leave without pay while acting in the stead of the CEUDA’s national president.

245 Thus, the evidence on its face is clear that the grievor occupied an official union role and that he did so on a full-time basis. The respondent argued that he was still an employee, paid by the CBSA and required to account for his time through his supervisor and otherwise subject to normal employment obligations. According to the respondent, his status differed significantly from that of Mr. Moran, who was on leave of absence to serve as the CEUDA’s national president.

246 In my mind, nothing turns on the difference between the grievor’s status and Mr. Moran’s status. Both union officials were on authorized leave. That one was paid by the respondent and the other by the bargaining agent does not change the reality that neither was performing the duties of a CBSA position. While witnesses for the respondent might maintain that the grievor could have been called to duty, the evidence is that he never was called to duty at any time material to this case.

247 The grievor’s leave status does not itself determine the question. As argued by the respondent, the first element of the Shaw test would be meaningless if everything that a union official does falls by definition within his or her role. Instead, the answer to the question must be found in the evidence of what the grievor actually did, what he wrote and the intent behind his action.

248 The case law is convincing that it is open to union representatives to pursue a range of strategies to advance membership interests, including targeting the media: see, for example, Canada Post Corp. and Burns Meat Ltd. The common characteristic of those strategies is that they support legitimate representational activities under the governing statute, such as improving terms and conditions of employment through collective bargaining or protecting members against unfair or illegal treatment by their employer through redress procedures. At paragraph 183 of King (PSLRB), I interpreted the case law as supporting a liberal approach to the definition of legitimate representational activities as follows:

…

… that the types of union expressions and activities that warrant protection are those that relate to labour relations issues within the representational mandate of the union, without necessarily restricting that mandate narrowly to traditional collective bargaining and grievance handling processes …

…

249 The respondent contends that the grievor was on a “frolic all his own.” The evidence supporting that position includes the following: (1) the grievor did not identify himself as a union representative in the email, and the media outlets that he contacted would not have known his status; (2) the reference in the email to “… ruin[ing] the careers of people like myself …” shows that the grievor was pursuing a personal agenda; (3) the tone and substance of the email were very different from the official communications of the CEUDA, however critical the latter were of the CBSA, and reflected personal rather than union motives; (4) there was no evidence that other CEUDA officials were pursuing the grievor’s allegations or endorsed his actions; and (5) the grievor’s decision not to appeal the ruling of the justice of the peace in Brampton because he lacked the necessary personal resources shows that he was pursuing criminal sanctions against Mr. Sheridan and Ms. Hébert on his own without the support of the union.

250 The respondent asked me to give weight to the fact that the grievor failed to call any other union witness to attest to the union’s support for his efforts. It maintained that it was very significant that the grievor described in cross-examination his decision to send the September 7, 2006 email as “… follow[ing] up with a private email to five recipients” [emphasis added]. It depicted the grievor’s continuing efforts to pursue his allegations against Mr. Sheridan and Ms. Hébert as a personal vendetta because King and Waugh had already resolved the labour relations issues associated with their order to employees to destroy the Kingman spreadsheet. Furthermore, outside authorities — the RCMP, the provincial court and the Peel police — had all told the grievor that he should pursue his concerns as labour relations issues.

251 I am not convinced by some of the evidence cited by the respondent or necessarily by all of its arguments about the significance of that evidence. However, I do find considerable merit in the respondent’s depiction of the grievor’s efforts over five years to pursue criminal charges against Mr. Sheridan and Ms. Hébert as a substantially personal campaign outside his official union mandate.

252 The grievor testified that “… if the likes of Mr. Derouin can so readily dismiss allegations of criminality … and if [the grievor] can’t get formal allegations of criminality addressed, what hope [does he] have of getting problems of the members addressed?” He stated that he felt “… duty-bound to address those issues …” and that “… the members expected that of [him].” There is no convincing evidence before me that the grievor’s members expected him to pursue criminal charges against Mr. Sheridan and Ms. Hébert. I have examined closely the CEUDA media releases adduced in evidence by the grievor (particularly Exhibit G-1, tabs 31 to 35) and other documents on the record for any indication that the representational objectives of the membership plausibly included bringing Mr. Sheridan and Ms. Hébert to account for criminal wrongdoing. I found nothing substantial to persuade me. I also do not find very credible the grievor’s explanation that pursuing criminal charges (by going to the provincial court) was necessary to protect the Kingman spreadsheet on behalf of the bargaining agent. To the contrary, the evidence was that the grievor had already reasonably protected the information by having it retained by counsel. It was also telling that the grievor testified that he did not appeal his failure to convince the justice of the peace to initiate criminal proceedings because he lacked the personal resources to do so, hardly suggestive that the course that he was pursuing was on the official behalf of his members or that it was sanctioned by the bargaining agent.

253 The grievor asked how he could hope to get the problems of his members addressed in the absence of a satisfactory investigation of his allegations of criminality. In my reading of the evidence, the “problems of his members” about the order to destroy the Kingman spreadsheet — the focus of the allegations of criminality — were in fact addressed. King and Waugh examined the situation as a labour relations matter and found in the grievor’s favour. To the extent that the Kingman situation engaged the representational interests of the grievor’s members in addition to his own, the concern was to ensure that the respondent respected the protections afforded union representatives to have access to, and to use, information for lawful representational purposes under the PSSRA and the Code. I find it helpful to recall what King and Waugh actually found in that regard, as follows:

…

[94]    Why ask the complainants to destroy a document if it did not violate section 107, or would only be in violation if shared with others? Mr. Tait testified that the Kingman report, of which the spreadsheet was a derivative, was tabled to further the customs inspectors' "agenda". This agenda was wage parity with police, and perhaps it was assumed that, by discussing this report, which listed various incidents at border crossings over a lengthy period of time, the inspectors were trying to make a case to be armed. The only conclusion I can draw is that the employer was attempting to negate this discussion by ordering the destruction of the document.

…

[97]    By ordering the destruction of the document, I believe the complainants were prevented from using the data to discuss their health and safety concerns at the OSH Committee meetings.

[98]    Based upon the evidence, I can come to no other conclusion than that the employer was interfering with the rights of the complainants to represent employees and their interests at the OSH Committee meetings. This would, in my view, be a violation of section 8 of the PSSRA and such a violation is prohibited.

…

[105]   The evidence showed that the employer suspended the complainants because they would not destroy a document. Both complainants, acting as health and safety committee members, had every right to bring items forward to the OSH Committee. What was the purpose of the Committee? Section 135 (1) of The Code states that the purpose of the committee was to address "…health and safety matters that apply to individual work places". By ordering the destruction of these documents, which according to the evidence did not contravene section 107 of the Customs Act, the complainants were prevented from addressing these health and safety concerns using this data, and a violation of The Code occurred.

[106]   Similarly, in my view, the employer violated section 134.1 (4) (b) of The Code in that the Committee was prevented from considering "…matters concerning health and safety raised by members of the committee". To state the obvious, if a committee member is prevented from raising an issue, it cannot be considered.

…

254 Thus, the grievor successfully represented the bargaining agent’s interests before the Board concerning the orders given by Mr. Sheridan and Ms. Hébert. Once the Board disposed of that matter, there is a very strong argument to be made that the continued pursuit of criminal allegations against Mr. Sheridan and Ms. Hébert took the grievor outside the scope of his representational responsibilities under the Act. The substantive safety and health issues, to which the Kingman spreadsheet information related, continued to animate other representations that he subsequently undertook and those of the CEUDA, and properly so, in my view. The evidence shows that the CEUDA’s media strategies remained focused on achieving objectives linked to protecting members from safety risks at the border and Canadians from border security threats. However, there is no corresponding basis to demonstrate why or how the legality of the 2002 order to destroy the Kingman spreadsheet remained a valid representational matter for the CEUDA members, other than in the grievor’s mind.

255 What does appear to have been engaged is the grievor’s strong sense, continuing to the present, that justice has not yet been served. He felt “duty bound” to continue. I know of no compelling construction of a union official’s duty under the Act to represent his or her members that extends that duty to the successful pursuit of criminal sanctions in the circumstances of this case, particularly after law enforcement authorities and a provincial court had told the grievor that the issues were labour relations questions. It may be that the grievor genuinely believed that it was necessary to continue or that he felt that he was aggressively representing the interests of his members when he did so. Nonetheless, his actions must be judged through more than just his eyes. They must be reasonably linked to representational objectives or activities under the Act. It may be that the pursuit of allegations of criminality can be considered an activity within the official scope of union representation under the Act in some circumstances. I do not believe that those circumstances exist in this case.

256 The grievor’s persistence in pursuing criminal allegations against Ms. Hébert and Mr. Sheridan has the strong flavour of a personal crusade, as argued by the respondent. The grievor had received consistent indications that he should address his concerns as a labour relations matter rather than in the criminal realm. The Board in King and Waugh had ruled in his favour on that basis. The question becomes what the grievor really hoped to achieve in the criminal domain other than, in some sense, to punish Ms. Hébert and Mr. Sheridan.

257 The evidence of the February 2006 incident, when the grievor allegedly told Mr. Sheridan to make sure that he put his house in his wife’s name because the grievor was going to sue him, was particularly troubling. The grievor disputes that he ever said such a thing, but his testimony on that point could well be viewed as self-serving. Applying the Faryna and Chorny test, I am persuaded that an informed person would prefer Mr. Sheridan’s evidence about the incident as more harmonious with the preponderance of the facts. Although Mr. Sheridan could be viewed as having his own interest in discrediting the grievor, his testimony as a whole struck me as forthright and candid. In my opinion, the incident with Mr. Sheridan offers a revealing glimpse into the grievor’s motives. I judge that he had little concern that his actions would place Ms. Hébert and Mr. Sheridan in personal jeopardy. To the contrary, it appears that the grievor wanted to bring them personally to account for criminal wrongdoing regardless of the direction of the CEUDA’s efforts elsewhere, justifying to himself that achieving criminal sanctions would serve the interests of his members.

258 With respect to the September 7, 2006 email, the grievor testified that it was an act of “… desperation, frustration, a last call.” It must be said that his desperate, frustrated last call struck out personally at “individuals” as much as it did at the respondent. Unlike the CEUDA media releases, it was not a statement of a position on an issue nor a proposal on how to address an issue. The grievor may have held out some final hope that his email would convince someone — perhaps only the media — to investigate his allegations of criminality, but his method of doing so, and particularly the tone that he used, is more evocative of a personal campaign than of an official union representation — regardless of how he signed the email. His reference to CBSA management “… ruin[ing] the careers of people like myself …” reinforces the sense that he was acting out of a conviction that he had been personally wronged by all that had occurred and that he sought personal vindication.

259 My finding that the grievor’s continued pursuit of his allegations of criminality took him outside his official union role in the circumstances of this case does not fully dispose of the issue. I must also be satisfied that the grievor’s September 7, 2006 email can reasonably be linked to his ongoing campaign relating to criminal allegations even though they were not explicitly mentioned.

260 On that point, the respondent argued that the email was not at all about criminality. For his part, the grievor maintained that his comments did not target Ms. Hébert and Mr. Sheridan. He stated that the email was not sparked by a single incident but rather that it was provoked by Mr. Jolicoeur’s testimony before the Senate and what had transpired over many years. He testified that he “… could not accept that they could just disregard his allegations …” by which he meant the allegations that he had made in his complaint of June 29, 2006 (Exhibit R-1, tab 26). Nevertheless, he conceded that the allegations of criminality “… came into play as well.”

261 Based on the weight of the evidence, and despite the respondent’s argument, I have no doubt that the grievor wrote his email with allegations of criminality firmly in mind. As he conceded in his examination-in-chief, his email was directly linked to his June 29, 2006 complaint, in which those allegations were prominently canvassed. The same allegations run as a constant theme throughout the history of this matter. In my view, the grievor could not have credibly denied that the allegations of criminality “came into play” in the email. The government recipients of the email were clearly in a position to understand what the grievor’s comments meant given the stream of previous correspondence directed to them by the grievor. Senior management of the CBSA undoubtedly recognized what the grievor was writing about. Ms. Hébert and Mr. Sheridan testified that they believed that the email targeted them as the subjects of the grievor’s past allegations of criminality.

262 Admittedly, there is no evidence that the media contacts who received the email would also have necessarily understood that it referred to allegations of criminality. Does that change the situation? In my view, it does not. The evidence, including the grievor’s own testimony, satisfies me that he meant to encompass the allegations of criminality in his email. While the grievor stated in cross-examination that he did not send the email to Mr. Bourbeau, one of the media recipients, expecting that he would write an article, as Mr. Bourbeau had done in 2001, he admitted earlier in examination-in-chief that he copied the email to media sources in the hope that some action would be taken. It stretches the imagination to think that the grievor’s interest in alleged criminal wrongdoing came to an end once he sent this email and that it would not have resurfaced in any media follow-up, had that occurred. The grievor’s email was an open invitation to the media to explore a record in which his allegations of criminality would almost immediately become apparent.

263 On the basis of the contextual evidence, including the evidence of the grievor’s intent in sending the email, I conclude on balance that the email was part of the grievor’s continuing effort to pursue his allegations of criminality against Ms. Hébert and Mr. Sheridan. To that extent, I view sending the email as an action outside the scope of his official union role.

264 For greater certainty, I do not consider that, on balance, a number of the other references in the email raise the same problem. In particular, I do not believe that the respondent has proven that the grievor acted outside his official union capacity per se when he alleged mismanagement by senior officials or by referring to “… national border security issues, safety and health issues, the code of ethics and values violations … ”

265 In summary, I find that the respondent has met its burden to establish that the grievor was not acting in his official capacity when he sent the September 7, 2006 email to the extent that the grievor continued, and intended to continue, to pursue his allegations of criminality against Ms. Hébert and Mr. Sheridan by sending that email.

C. Did the circumstances of the grievor’s public criticism of the respondent meet the Fraser criteria?     

266 At paragraph 41, Fraser identifies the types of circumstances in which a public servant may resort to public criticism of his or her employer, the government, at paragraph 41 as follows:

… in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability… .

267 In my opinion, the grievor’s act of public criticism does not reasonably fall within the first of the listed Fraser exceptions. I have ruled that the subject matter of the email included allegations of illegal activity, as envisaged in Fraser. However, in view of the history of this case, I do not believe that the grievor had a reasonable basis for making criminal allegations when he sent the email. As discussed in the previous section, the grievor took his concerns about alleged criminal wrongdoing by Ms. Hébert and Mr. Sheridan to a court and to law-enforcement authorities. Giving the grievor the benefit of the doubt that the August 2002 meeting with the RCMP was more about his own legal status than that of Ms. Hébert and Mr. Sheridan — the evidence in the RCMP document tabled during the King and Waugh hearing points in that direction (Exhibit G-4) — it still remains apparent that he continued to pursue his criminal allegations despite being authoritatively advised that he should pursue his concerns as labour relations issues. Particularly in such a situation, something more than the grievor’s persistent belief is necessary to satisfy the Fraser requirement to show that the government was engaged in illegal activity. To be sure, the case law has consistently assigned the onus to employees to provide some proof of alleged criminality.

268 In Grahn v. Canada (Treasury Board), for example, the Federal Court of Appeal stated as follows:

…

… having chosen the drastic course of publicly accusing his superiors of illegalities, it was up to the applicant to prove his allegations if he wished to avoid the otherwise natural consequences of his actions … The applicant’s own unsubstantiated allegations are certainly not enough.

…

In the much more recent decision in Read, the Federal Court of Appeal again took the view that a grievor has a burden to establish the basis for allegations of illegality in order to come within the Fraser exception.

269 In this case, the grievor did not provide any element of proof that either Ms. Hébert or Mr. Sheridan committed a criminal offence; nor did he try.

270 The subject of the grievor’s criticism also does not reasonably involve “… policies [that] jeopardized the life, health or safety of the public servant or others … ” The grievor does mention security, safety and health concerns in the first paragraph of the email. However, the content that I have found problematic in the email concerned his criminal allegations, which in turn addressed the order to destroy the Kingman spreadsheet. In the context of this case, the destruction of the spreadsheet cannot be reasonably said to pose a sufficiently substantial or direct risk to life, health or safety as to bring it within the Fraser exception. In any event, the evidence showed that a copy of the spreadsheet was retained in the hands of counsel and that it was apparently available to the grievor or to the bargaining agent.

271 The third Fraser exception applies “… if the public servant’s criticism [has] no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.” The respondent submitted (in the Memorandum of Fact and Law) that direct evidence of impairment is not necessary in this case “… given the groundless nature of the grievor’s comments along with the vindictive manner, in which he alleges harassment, incompetence and a lack of integrity on senior officials … ” It argued orally that both the content of the email and the evidence given by Mr. Sheridan and Ms. Hébert demonstrated that the grievor’s action had an immediate and direct impact on the respondent’s ability to trust and work with him in the future. For his part, the grievor maintained that his duties were to perform the functions of a union representative and that the respondent did not lead evidence that sending the email impaired his ability to perform those functions.

272 The grievor’s point does not withstand scrutiny. The concept addressed in Fraser is the employee’s continued ability to perform the work assigned to him or her as an employee. The respondent approved the grievor’s leave for the purpose of performing union business. That approval does not transform the grievor’s union functions into work assigned to him by the respondent. The concerns about “… the characteristics of impartiality, neutrality, fairness and integrity …” inherent to government employment, which gave rise to Fraser, do not plausibly apply to his role on behalf of the union.

273 I accept that the evidence in this case establishes that, on balance, the grievor’s actions could reasonably be expected to undermine his ability to perform his public service role, when and if he is required to do so. The problematic content of the email — the intended inclusion of allegations of criminality — strikes to the heart of the grievor’s relationship with representatives of the respondent. I find it hard to imagine that a reasonable person would not seriously question the grievor’s ability to perform his duties as a public servant in view of the nature of his allegations and the way in which they were expressed.

274 In sum, I cannot find that the grievor’s action falls within the scope of any of the Fraser exceptions. For that reason, I accept that the respondent had cause to impose discipline.

275 Had I been satisfied that one of the Fraser exceptions applied in this case, my analysis would have proceeded to two further elements, that is, whether the grievor exhausted all internal redress procedures and whether he established that the statements that he made in the email were true (the latter already canvassed to some extent). Given my ruling on the first element of the Fraser test, I do not need to proceed further.

D. Was a 20-day suspension with pay the appropriate penalty?

276 Having ruled that the respondent had cause to discipline the grievor, I turn finally to the issue of the appropriate disciplinary penalty.

277 Mr. Gillan testified that he chose a 20-day suspension because management wanted to give the grievor another chance to change his behaviour and that it did not view his September 7, 2006 email as justification to terminate the grievor’s employment.

278 The logic behind choosing a 20-day suspension in those circumstances rather than, for example, a third 30-day penalty is not entirely clear. To be sure, the respondent conceded that Mr. Gillan’s decision departed from the normal model of progressive discipline.

279 The grievor suggested several reasons to relieve him of any suspension, including the lack of evidence of harm caused by his email and the alleged examples of misconduct on the part of the respondent’s representatives.

280 Weighing the arguments of the parties, I do not believe that this case requires a lengthy analysis of possible aggravating and mitigating factors. Instead, my decision rests on the following three basic observations: (1) The grievor’s action was not a minor matter. The allegations that he pursued in contacting the media were serious with potentially serious consequences. His misconduct requires a serious response. (2) The respondent’s decision to impose a penalty of 20 days despite the previous 30-day suspensions then on file suggests that the respondent considered the email incident as somewhat less serious than the grievor’s previous infractions. (3) Since Mr. Gillan made his decision in November 2006, the grievor’s first 30-day suspension has been removed by virtue of my decision in King (PSLRB). The second 30-day suspension was reduced to 5 days as a result of a mediated settlement.

281 In the circumstances, I find that a 10-day suspension without pay is a more appropriate penalty for the grievor’s misconduct and is more consistent with a model of progressive discipline.

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

V. Order

283 The grievance is allowed in part to the following extent: The 20-day suspension without pay is replaced with a 10-day suspension without pay.

284 The grievor’s pay and benefits shall be adjusted accordingly.

February 23, 2010.

Dan Butler,
adjudicator