FPSLREB Decisions

Decided on the basis of written submissions,
March 23, 28 and April 3, 2017.

REASONS FOR DECISION

I. Application before the Board

1        Section 22 of the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) provides that the Public Service Labour Relations and Employment Board (“the Board”) may decide any matter before it without holding an oral hearing. Having reviewed all the material on file, the Board is satisfied that the documentation before it is sufficient for it to decide the matter without holding an oral hearing

2        In the decision Lloyd v. Canada Revenue Agency, 2015 PSLREB 67, inter alia, adjudicator Joseph W. Potter dismissed the grievance of Mary Alice Lloyd (“the grievor”, in the context of this decision) against a 40-day disciplinary suspension imposed by the respondent, the Canada Revenue Agency.

3        The grievor brought an application for judicial review to the Federal Court of Appeal (“the Court”) to set aside the adjudicator’s decision.

4        By judgment dated April 13, 2016, in Lloyd v. Canada (Attorney General), 2016 FCA 115, the Court allowed the application for judicial review in part and remitted the matter to the adjudicator, or if that adjudicator were unavailable to another duly appointed adjudicator, for redetermination of the length of the sanction, in accordance with the Court’s reasons.

5        The Chairperson of the Board appointed me to redetermine the length of the sanction in accordance with the Court’s reasons.

6        The matter has been scheduled for a rehearing in Toronto, Ontario, on April25, 2017.

7        On February 27, 2017, counsel for the respondent wrote to the Board requesting a pre-hearing conference. Counsel advised the Board that it had been brought to his attention that the grievor was intending to call medical evidence at the rehearing. Counsel also advised that in addition to the fact that the respondent would receive the medical report only at the last minute and would not be in a position to engage its own expert, there was a more fundamental point to be addressed, which was the scope of the hearing.

8        A prehearing conference was held on March 21, 2017. The representatives for both parties briefly outlined their positions with respect to the scope of the hearing.

9         Counsel for the respondent took the position that the Court’s intent was to send the matter back for redetermination on one narrow point, the length of the disciplinary sanction, which gives the parties an opportunity to make submissions on condonation and any other argument deemed relevant to the issue by the adjudicator. This direction of the Court excluded the possibility of introducing new evidence.

10        The grievor’s representative takes the position that the Court instructed the Board to broadly redetermine the appropriateness of the suspension, which would require both calling new evidence and viva voce evidence to make that determination.

11        The Board directed the parties to provide written submissions on the proper scope of the hearing.

II. Summary of the arguments

A. For the respondent

12        On July 23, 2015, Adjudicator Potter rendered the decision in 2015 PSLREB 67 that upheld the grievor’s 40-day suspension. The decision was rendered after 16 days of hearings and after written submissions were filed.

13        An application for judicial review to the Court was partially allowed. The matter was remitted for redetermination of the length of the suspension, in accordance with the Court’s reasons.

14        At paragraph 25 of the Court’s reasons, Justice Rennie noted specifically the following: “At this point the parties will be at liberty to make submissions in respect of condonation or any other argument that the adjudicator may find relevant to determine the length of the suspension that could be justified by these two findings” [Emphasis added by the respondent].

15        The respondent’s position is that the Court’s intent was to send the matter back for redetermination on one narrow point, giving the parties an opportunity to make submissions on condonation, along with any other argument that the adjudicator deems relevant to the case.

16        By expressly indicating what the parties were permitted to do, the legal principle expressio unius est exclusio alterius is engaged. By indicating that the parties were free to make additional argument, Justice Rennie excluded the possibility of introducing new evidence.

17        This is not a case in which a court simply quashed a decision and left the scope of the hearing to a tribunal to decide, thus giving the tribunal discretion on whether to receive evidence. In this case, the Court directed the Board and the parties on the scope of the participatory rights. The Court’s authority to do this is found in the Federal Courts Act (R.S.C., 1985, c. F-7; “the Act”).

18        The Act notes as follows in s. 28(2): “Sections 18 to 18.5 ... apply ... in respect of any matter within the jurisdiction of the Federal Court of Appeal ...”. As a result, s. 18.1(3)(b) of the Act provides the Court with the following authority:

Powers of Federal Court

18.1(3) On an application for judicial review, the Federal Court may

...

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

[Emphasis added by the respondent]

19        Parliament has given the Court wide discretion to refer a matter back to a tribunal with directions “as it considers to be appropriate”. The Court is given a wide grant of authority to direct tribunals as to the participatory rights to be afforded to the parties on redetermination.

20        The question is, what did Justice Rennie intend?

21        It is respectfully submitted that the Court intended to limit participatory rights only to argument (on the narrow issue of the amount of the suspension).

22        After 16 hearing days before Adjudicator Potter, both sides closed their cases. Albeit in a different context, it is useful to consider the Court’s decision as follows in Francella v. Canada (Attorney General), 2003 FCA 441 at para. 9:

[9] ... However, it would seem to me that, except in the most unusual circumstances, it would be procedurally unfair to remit a matter for reconsideration for the sole purpose of giving one party an opportunity to introduce new evidence that could have been introduced at a prior hearing. Generally, once parties close the evidentiary portion of their cases, they proceed to argument and the case is decided on the basis of the evidence submitted. If evidence was deliberately or even accidentally withheld and it is later found that the evidence would be helpful to the party, it will generally be too late to admit it. The opposing party may have determined its strategy on the basis of evidence that was not adduced, or may even have made prejudicial admissions on this basis.

23        At paragraph 11 of that decision, the Court noted that “[i]t was unfair to give the Commission ‘a second kick at the can’.”

24        The Court did not direct the tribunal to allow the parties to reopen their cases to call evidence that they chose not to call when the case was first argued.

25        It is trite law that this tribunal is bound by the principle of stare decisis and that it must adhere to the order of the Court.

26        When the Court wants parties to have the opportunity to both bring new evidence and make additional submissions, it will state so explicitly. For example, see Yousuf v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 532 (C.A.) (QL), which states as follows:

...

Accordingly, the decision cannot stand and must be set aside. However, we believe that in the circumstances the matter should be returned to the same panel of the Refugee Division which was seized of it, to reopen the hearing, as it should have done, and permit evidence to be adduced and the necessary submissions to be made, before deliberating on and deciding the matter afresh.

...

27        Clearly, the Court distinguishes between “evidence” and “argument”, as they are not synonymous terms. In this case, the Court directed that the hearing be limited to argument and it is respectfully submitted that the Board is bound by the principle of stare decisis.

28        A similar issue came up in Association of Justice Counsel v. Treasury Board, 2016 PSLREB 119, in which the Court had overturned an earlier decision, had remitted it back to the Board, and had allowed the parties the opportunity to file submissions. As noted at paragraph 25: “The employer submitted that Mr. Swoffer’s affidavit should be struck, as the Federal Court of Appeal ordered that submissions be received by the adjudicator and did not say that evidence be received.” Adjudicator Katkin rules as follows at paragraph 32: “With respect to Mr. Swoffer’s affidavit, it constituted fresh evidence, which I do not admit and I shall disregard.”

29        For all these reasons, it is respectfully submitted that the proper interpretation to be given to the Court’s decision is that Justice Rennie intended to limit the parties’ participatory rights to argument based on the existing record and not to allow them to split their cases by calling new evidence.

B. For the grievor

30        The grievor’s position is that the Court’s decision instructs the Board to broadly redetermine the appropriateness of the suspension, which requires both calling new evidence and viva voce evidence to make that determination.

31        The Court instructed the Board as follows at paragraph 25 of its decision in 2016 FCA 115:

[25] ... I would remit the matter to the adjudicator, or if unavailable to another duly appointed adjudicator, for re-determination  of the appropriateness of the suspension in light of the findings that the applicant breached CRA policy by removing taxpayer information without express authority from her employer and her utilization of non-CRA devices to make copies of the CD containing her email. At this point the parties will be at liberty to make submissions in respect of condonation or any other argument that the adjudicator may find relevant to determine the length of the suspension that could be justified by these two findings.

[Emphasis added by the grievor]

32        The grievor’s position is that that paragraph must be read broadly and as a whole, to discern the intent of the Court’s instructions. Furthermore, the grievor submits that the respondent placed an undue amount of emphasis on the words “submissions” and “argument” in paragraph 25, pushing for a narrow interpretation of the Court’s direction.

33        The Court ordered the Board to redetermine the appropriateness of the penalty in light of the two findings it upheld, indicating the parties were at liberty to make submissions on condonation or any other argument that the Board found relevant. However, nowhere in the Court’s decision does it limit the Board to determining the appropriateness of the suspension solely on the existing record; nor does it preclude calling new evidence.

34        The grievor asserts that if the Court intended the Board to limit itself to the existing record, it would have done so explicitly, as it has done in previous cases. For instance, in Chopra v. Canada (Attorney General), 2014 FC 246, upheld 2015 FCA 205 and 206, the Federal Court instructed as follows at paragraph 414:

[414] ... I agree with the parties that the new hearing should proceed on the basis of the existing record, with no new evidence to be adduced by either party. The parties shall, however, be afforded the opportunity to make additional submissions with respect to the outstanding issues.

35        Clearly, if the Court intended to limit the parties only to submissions on the existing record in this matter, it would have written so unambiguously.

36        The Court’s instructions are distinct from those in Association of Justice Counsel v. Treasury Board, 2016 PSLREB 119, which the respondent relied on. In Association of Justice Counsel v. Canada (Attorney General), 2016 FCA 56 at para. 19, in remitting the matter to the Board, the Court wrote as follows:

[19] For the forgoing reasons, I would allow the application in file A-379-15, quash the adjudicator’s February 4, 2015 order, and remit the matter to the adjudicator for the sole purpose of issuing a new order that accurately reflects his reasons for decision. For reasons of procedural fairness, I would direct that the adjudicator receive submissions from the parties regarding the wording of the new order.

[Emphasis added by the grievor]

37        In that case, the Court clearly instructed the parties to only make submissions on the wording of the new order, as such; it is unsurprising that the Board refused to receive new affidavit evidence. On the contrary, in this case, the Court did not explicitly limit the parties to only making submissions.

38        Furthermore, the grievor argues that the Court provided the Board discretion with respect to admitting new relevant evidence. The Court wrote at paragraph 25 of 2016 FCA 115 that the parties could make “... any other argument that the adjudicator may find relevant to determine the length of the suspension ...”. The grievor contends that that direction explicitly opened the door for new evidence in support of any argument that the adjudicator may consider relevant and that it provided the Board with the discretion to determine what evidence it will hear.

39        In this matter, the grievor is attempting to adduce medical evidence related to the grievor’s health at the time the acts occurred that led to the discipline. This evidence will assist the Board in fulfilling the Court’s order. Specifically, it will help the Board determine whether the respondent considered the state of the grievor’s health when determining the appropriate suspension, in light of the two findings. The grievor notes that this was a key mitigating factor in determining the appropriate penalty in a number of recent Board cases (see Rodrigue v. Deputy Head (Department of Veterans Affairs), 2016 PSLREB 9, or Rahmani v. Deputy Head (Department of Transport), 2016 PSLREB 10).

40        The grievor asserts that if medical evidence is found, or indeed any new evidence relevant to redetermining the appropriateness of the suspension, such as evidence related to condonation or discriminatory discipline, then it is properly admissible based on paragraph 25 of the Court’s decision.

41        The respondent relies on Francella in support of the argument that it would be unfair to reopen this case. It is noteworthy that this is a review of a Canada Employment Insurance Commission umpire’s decision. That commission is a very different administrative body from the Board. It has a unique decision-making process that often relies on laypeople to determine the matters before them. This is starkly different from Board adjudicators. The Court’s comments that the respondent relied on must be considered in that context. Given that that commission’s decision-making process is very different from the Board’s, this case should not be considered. 

42        In light of the foregoing, the grievor’s position is that the Court’s instruction to the Board is to broadly redetermine the appropriateness of the suspension. At no point in its decision did the Court limit the Board solely to looking at the existing record. In fact, the Court’s direction, read as a whole, elucidates its intent that the Board is required to consider any evidence it feels is relevant to determining the appropriate penalty in this matter.

C. Reply of the respondent

43        At page three of her submissions, the grievor takes the position that the proposed medical evidence is “... a key mitigating factor in determining the appropriate penalty ...”. However, she does not explain why this key evidence was not submitted during the 16 days of hearings before Adjudicator Potter and before she closed her case in evidence.

44        At page two of her submissions, the grievor admits that this evidence relates to her health, stating, “... at the time of the acts which lead [sic] to the discipline ...”. It is clearly evidence that was available when she presented her case. The issue is not one of relevance, as the grievor suggests, but of the proper interpretation to be given to the Court’s order and reasons.

45        However, it is an important contextual factor to note that the grievor could have called this evidence before Adjudicator Potter. She is asking permission to split her case. It is trite law that it is inappropriate to allow a party to split a case for which the grievor has the burden of proof (a medical defence is a positive defence).

46        The Court has been given a wide grant of authority to send matters back to tribunals, with instructions. That is precisely what occurred in this case. Justice Rennie could have simply quashed the original decision, sent it back without instructions, and left it to the Board’s discretion to determine the scope of the parties’ participatory rights. He did not; rather, he specifically directed the parties and the tribunal with respect to the scope of those participatory rights. In 2016 FCA 115, when it indicated that the parties would be free to make “... submissions in respect of condonation or any other argument ...”, the Court clearly limited the rehearing only to argument (expressio unius est exclusio alterius).

47        As a result, the respondent respectfully requests that the Board issue a declaration that the scope of the parties’ participatory rights is limited only to argument.

III. Reasons

48        The Federal Court Act provides at ss. 28(1) and 18.1(3):

28 (1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:

...

(i) The Public Service Labour Relations and Employment Board that is established by subsection 4(1) of the Public Service Labour Relations and Employment Board Act;

...

(2) Sections 18 to 18.5, except subsection 18.4(2), apply, with any modifications that the circumstances require, in respect of any matter within the jurisdiction of the Federal Court of Appeal under subsection (1) and, when they apply, a reference to the Federal Court shall be read as a reference to the Federal Court of Appeal.

...

Powers of Federal Court

18.1(3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

A. The Court’s reasons and judgment

49        In the Court’s decision in 2016 FCA 115, Justice Rennie concludes that the adjudicator’s reasons with respect to the 40-day suspension were not justified by transparent and intelligible reasons. As a consequence, two of the grounds the respondentset out for imposing the suspension had no factual basis.He concludes at paragraphs 22 and 23 as follows:

[22] The reasons in support of the 40-day suspension however, cannot be sustained. The 40-day suspension was predicated on CRA’s allegation that there was, in the language of the Notice of Disciplinary Action, “a continued and ongoing risk of disclosure of sensitive taxpayer information” arising from the downloading of the CDs on to the computers of the applicant and her then boyfriend, as well as the allegation that the applicant had breached section 241. The adjudicator dismissed these as either irrelevant or made no finding.

[23] The adjudicator was required to consider the appropriateness of the length of the 40-day suspension in light of the two acts of misconduct that had been established - the removal of taxpayer information without express authority and the use of the non-CRA devices to copy the CD containing the email. This he did not do.

50        Justice Rennie observed that the basis upon which the 40-day suspension was justified could not be discerned without engaging in speculation and rationalization. He referred to his reasons in Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431 at para. 11: “Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking.”

51        In concluding that a supervisory court does not have authority to do the task that the decision maker did not do, i.e., to supply the reasons that might have been given and make findings of fact that were not made, he stated in Komolafe at para. 11: “Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.”

52        Allowing the application, the Court directed at paragraph 25 of 2016 FCA 115:

[25] ... I would remit the matter to the adjudicator, or if unavailable to another duly appointed adjudicator, for re-determination  of the appropriateness of the suspension in light of the findings that the applicant breached CRA policy by removing taxpayer information without express authority from her employer and her utilization of non-CRA devices to make copies of the CD containing her email. At this point the parties will be at liberty to make submissions in respect of condonation or any other argument that the adjudicator may find relevant to determine the length of the suspension that could be justified by these two findings.

53        Parliament has empowered the Court with a wide authority on judicial review to declare a decision invalid or unlawful or to quash it, set it aside, or set it aside and refer it back for determination, in accordance with such directions as it considers appropriate.

54        The Court did not direct that the matter be remitted to an adjudicator to do the task that the original adjudicator in its view did not do, namely, to supply the reasons that might have been given or to make findings of fact with respect to the allegation that a continued and ongoing risk of disclosure of sensitive taxpayer information arose from downloading the CDs on to the computers of the grievor and her then-boyfriend and the allegation that she had breached s. 241 of the Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)). Clearly, to have done so would have required a direction to reopen the case and to authorize the parties to introduce new evidence or to recall witnesses that either were or could have been called at the original hearing.

55        Rather, the Court directed that the appropriateness of the suspension be redetermined in light of the adjudicator’s findings that two acts of misconduct had been established, namely, the grievor breached the respondent’s policy by removing taxpayer information without express authority from her employer, and she used devices that were not her employer’s to make copies of the CD containing her email.

56        It is in this narrow context that the Court directed that “... the parties will be at liberty to make submissions in respect of condonation or any other argument that the adjudicator may find relevant to determine the length of the suspension that could be justified by these two findings.”

57        Justice Rennie clearly distinguishes between evidence and argument. I conclude that the Court has directed that the hearing before this tribunal be limited to argument based on the existing record.

58        For all of the above reasons, the Board makes the following order:

IV. Order

59        The hearing before me shall be limited to argument based on the existing record.

April 12, 2017