FPSLREB Decisions

File: 166-2-27335 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN HÉLÈNE BEAULIEU Grievor and TREASURY BOARD (Justice Canada)

Employer

Before: Yvon Tarte, Chairperson For the Grievor: Ionnis Mavrikakis For the Employer: Carole Bureau, Counsel Heard at Montreal, Quebec, October 7, 1996

Decision Page 1 DECISION On June 11, 1996, Hélène Beaulieu requested that the Board refer her harassment complaint against Mr. Marc Mayrand to adjudication. The complaint in question had been filed with the Department of Justice Human Resources Directorate on October 24, 1994. (Translation) I have attached pages 14 and 15 of the document sent on the 18th of this month — i.e., the complaint against Assistant Superintendent Marc Mayrand of the Office of the Superintendent of Bankruptcy.

After I contacted Denis Garceau, Investigation and Conciliation Officer for the Quebec region (514-283-2514), the latter advised me that I should address my complaint to you.

Yours truly,

August 26, 1994 Mr. Marc Mayrand ....

Re: Maurice Gallant and Maurice Gallant & Associés Inc. Dear Sir: The events of the past few days have led me to believe that too many Department representatives are involved in the above case, in contravention of the Quebec Bar Association’s code of ethics.

I feel that, under the circumstances and without presuming to judge the competence of anyone concerned, since my colleague from the opposite party has contacted me, it would have been seemly that the matter not be the subject of such widespread discussion.

Having no wish to intervene in the final decision, which rests with you and which I do not contest, I would have preferred that any discussion between the above-mentioned parties and the Department be conducted in the presence of the main party involved, i.e., myself. As you are well aware, when several parties are involved, some benefit from the situation by insinuating that one thing or another had been said. In

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Decision Page 2 any event, I cannot blame my colleague for taking advantage of this state of affairs.

What credibility will I have in the eyes of my colleague, given the number of parties involved?

As a result, I consider my position more than uncertain and liable to be misunderstood. In order not to appear too incompetent to my colleague, I am regretfully obliged to withdraw from this case, and I believe that anyone as understanding and intelligent as you would do the same.

Yours sincerely, Montreal, August 30, 1994 Mr. Marc Mayrand ...

Re: Maurice Gallant and Maurice Gallant & Associés Inc. Dear Sir: Our conversation of this evening has led me to believe that the letter I sent on August 26 was perhaps not explicit enough, or that you misunderstood the contents.

I am not thinking of myself here. As far as I can tell the case has been made in all fairness, and the reason I wrote the above-mentioned letter was to protect the Department and prevent the opposite party from taking the remarks and sentiments of those concerned as weakness.

Believe me, throughout my career I have had only one interest at heart — that of my employer — and it would be immoral of me to do otherwise.

I believe it would be appropriate for you to take an hour or so to try to understand the reasons for my letter, as I was not informed of all the facts and furthermore, several parties based their decision on the bits and pieces of conversation they had overheard. No one is to blame here but the “system,” as everyone adopts a fixed position without taking time to weigh the consequences of their decisions, not only for the parties to the case but for third parties as well.

I would like to have spoken to you beforehand, but the circumstances forbade it; however, I did discuss the dangers

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Decision Page 3 of this “practice” and its ethical implications with your temporary replacement.

I may be mistaken, but I believe the fact that I informed you of my dissatisfaction and advised the Department of the claims of the parties in question would actually be to your advantage. I am sorry that you took my actions the wrong way, but I cannot do my job like a robot.

Please believe me when I say once more that my sole concern was to protect the interests of the Department, and that I have nothing to gain personally.

I hope you will allow me to meet with you and discuss the matter further, so as to eliminate any remaining misunderstandings.

Yours sincerely,

... present my excuses and seemed to feel that it was a “mistake” that could be corrected. It seems that Mr. Mayrand has refused to meet with me to date.

Mr. Von Finckenstein then asked Mr. Lewis to contact Mr. Mayrand so I could meet with him in the presence of Mr. Lewis.

Meeting between Marc Mayrand at the Office of the Superintendent, in the presence de Mr. Lewis, on October 12, 1994.

At Mr. Lewis’s request, Mr. Mayrand repeated several times that the only factor involved in his decision was the position I adopted in my letters of August 26 and August 30, 1994.

I asked him: - if he knew that Mr. Gauvreau had not spoken to me since September 19, 1994;

- if he had asked Mr. Gauvreau to instruct Ms. Mahoney not to follow up on the various memos I had sent to obtain documents required to close a case...and gave him the memo sent to Mr. Gauvreau on October 7.

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the undersigned and

Decision Page 4 - I also informed him that Mr. Gauvreau had said, in the presence of Mr. Lewis, that the document submitted on August 19 was not what the Superintendent had requested, and told him that I would have appreciated it if they (he and the Superintendent) had informed me of their comments at the said meeting. Mr. Mayrand told me he had made no comments except for those voiced at the current encounter.

- As for the allegation that I did not have a good relationship with the auditors, Mr. Mayrand turned the question back on me. Among other things, I told him that, to my knowledge and in my opinion, only one of the three auditors with whom I had worked was dissatisfied — i.e., the one who had gone to trustee “G” and who had not spoken to me since my letter of August 26, 1994.

I also stressed that, except for the incident I mentioned at our meeting of September 12, the auditor and I had coffee on a regular basis BEFORE August 23, 1994.

I added that the individual in question, although replying to my greetings, seems to wish to avoid any attempt at conversation.

At the meeting of August 30, 1994 Mr. Mayrand made certain hurtful and vexatious remarks, even going so far as to question my integrity, saying:

a) that I had acted in my own interests, not those of the Department;

b) that I wanted to “unload” the case because it was problematic;

c) that I had given up. There was no need for such accusations that could have been discussed at a meeting that could have been conducted calmly and reasonably.

Furthermore, he did not speak to me for almost a week (i.e., until September 9, 1994), when we made arrangements for a meeting in Ottawa.

At that meeting, it came out that my six months of work had been for nothing, as he felt the auditor’s initial report was sufficient. He apologized for his choice of words

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Decision Page 5 but repeated that I had acted in my own interests, although he did not specify what those were.

He concluded by saying that he felt I was not a team player.

I would like to emphasize once more that I received no information when I started working on the case:

− no formal or informal meetings with Mr. Gauvreau; − no guidelines on what exactly to work on; − no supervision; − the file was given to me with no accompanying instructions; − there was no discussion of legal matters with Mr. Gauvreau.

The only directives came from telephone conversations and meetings with Mr. Mayrand, who told me to add or remove certain matters from the file.

On August 30, 1994 Mr. Mayrand came to Montreal to discuss the case with Mr. Leclerc and trustees F. and G, and while he takes pride in being a manager with several years of experience as legal counsel and a government employee, not to mention as my supervisor, he did not even bother coming to see me before the meeting to discuss my letter. Instead he ignored me completely, where common sense, in my opinion — especially if he was truly “completely at a loss” — would have dictated a frank and open discussion. After all, we were not enemies, but employee and employer.

Since October 12, at which time it was agreed that he would send me a letter regarding his intentions, nothing has transpired except what he said to Mr. Lewis in my presence on Mr. Von Finckenstein’s insistence that we meet.

The Conflict of Interest Issue At the outset of the hearing Mr. Mavrikakis raised the issue of conflict of interest in relation to Ms. Carole Bureau of the Department of Justice. The Grievor’s representative stated that Ms. Bureau was involved as applicant in a case similar to that presented in file 166-2-27316 dealing with a salary issue and the enforcement of certain legislation governing compensation for government employees. In support of his thesis the Grievor’s representative referred me to the following texts and decisions: Code of Ethics for Legal Counsel (R.S.Q. 1981, c. B-1, T. 1), Guide sur les conflits d’intérêts (Service de recherche et de législation, Barreau du Québec), MacDonald

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Decision Page 6 Estate v. Martin, [1990] S.C.R. 1235, 2527-7195 Québec Inc. v. 161442 Canada Inc. (S.C., District of Montréal n o : 500-05-000372-894), Donald D. Thomson et al. v. Smith Mechanical Inc. et al., [1985] S.C. 782, APV Pavailles Inc. v. Alain Bonischot and John A. Swift (Court of Appeal, Montreal Office, no. 500-09-000999-912) and Claude Pageau v. Dame Blanche Vanasse Aubry (S.C., District of Montreal, no. 500-14-002503-910).

Mr. Mavrikakis therefore requested, inter alia, that Ms. Bureau be declared unqualified to represent the Department of Justice in this case, and that new counsel be appointed within the prescribed deadlines.

In reply to the questions raised by the Grievor’s representative, the Department representative stated that the possibility of a conflict of interest could be raised with respect to file 166-2-27316 only as regards the salary issue, and that in any event, should the case be heard on its merits, she and Mr. Piché were prepared to withdraw.

Decision on the Conflict of Interest Issue Given the fact that the Employer’s representatives had undertaken to withdraw from file 166-2-27316 if the case were heard on its merits, I ruled that Ms. Bureau and Mr. Piché could submit their preliminary objection to jurisdiction with respect to Ms. Beaulieu’s six referrals: i.e., Board files 166-2-27313 to 27316, 27289 and 27335. By limiting their intervention to questions of jurisdiction, counsel for the Department of Justice would not be in a conflict of interest situation, either real or apparent.

Preliminary Objection On July 26, 1996 Ms. Bureau, on behalf of the Employer, submitted the following objection to jurisdiction.

(Translation) I wish to inform you that the Employer objects to the appointment by the Public Service Staff Relations Board of an adjudicator under paragraph 95(2)(c) of the Public Service Staff Relations Act (the Act) to hear the grievance in question on the following grounds:

Ms. Hélène Beaulieu never filed a grievance against Mr. Marc Mayrand under the terms of the Act, but rather lodged a harassment complaint which was dealt with

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Decision Page 7 according to departmental procedure governing harassment in the work place. This process has not yet been concluded, as the final report from the departmental representative is not yet available.

Furthermore, even if the Board were to find that the said harassment complaint does constitute a grievance, the Employer objects to the appointment of an adjudicator under paragraph 95(2)(c) of the Act for the following reasons:

Ms. Hélène Beaulieu occupied confidential position” as defined in section 2 of the Act, as she held the title of legal officer in the Department and was excluded from collective bargaining.

According to paragraph 92(1)a) of the Act, Ms. Beaulieu cannot refer this grievance to adjudication because it does not involve the interpretation or application of a provision of a collective agreement or an arbitral award;

Second, Ms. Beaulieu’s complaint, which is entitled “Harassment Complaint Against Mr. Marc Mayrand”, deals with the latter’s supposed refusal to meet with her, as set forth in the letter of complaint of June 11, 1996 filed by the complainant in support of her application and this referral to adjudication.

However, as this grievance does not involve a suspension or a financial penalty, or even disciplinary action resulting in termination of employment or suspension or a financial penalty, Ms. Beaulieu may not avail herself of subsection 92(b) of the Act to refer her grievance to adjudication.

This motion to dismiss is submitted in the interests of justice, as it is useless to burden the Board with cases over which an adjudicator obviously has no jurisdiction.

We would be prepared, on behalf of the Employer, to make oral representations if the Board deems it appropriate to hold a hearing on this issue.

Given the preceding, we believe it would be inappropriate for the Board to immediately set a hearing date for the case in question over the period from October 7 and 11, 1996.

Awaiting your decision, I remain Yours truly,

Public Service Staff Relations Board

a “managerial or

Decision Page 8 During the hearing for the grievance held October 7, 1996, Ms. Bureau repeated her preliminary objection.

In response to the objections submitted by Ms. Bureau on July 26, 1996, Mr. Mavrikakis submitted the following arguments in a letter dated August 16, 1996 dealing with the various grievances referred to adjudication by Ms. Beaulieu. SUBJECT: Reference to Adjudication (166-2-27289, 27313 to 316, 127335, Hélène Beaulieu - Justice Canada

Dear Assistant Secretary, I acknowledge receipt of the letters of Mrs. Carole Bureau, representing the Department in this matter, and I fail to understand the first three paragraphs that are repeated verbatim on the first page of each of the six letters.

On 11 June 1996, a grievance was brought before your Board by Mrs. Hélène Beaulieu. On 28 June, you informed the parties that a hearing on these matters would be held from 9 to 13 September 1996. Subsequently, we requested another date in the month of October, a request which the counsel for the employer, at that time Mr. Roger Lafrenière, accepted. Subsequently another solicitor was assigned for reasons familiar to you, and it was only on 26 July that the employer decided to object to the Board’s hearing the grievances and complaints of Mrs. Hélène Beaulieu.

I wish to point out that in no case did the first counsel present this argument, and it was only 45 days after submission of the grievance that the employer, for reasons that remain obscure and that rely on rules enacted by the employer itself, objected to having the Board deal with Madame Beaulieu’s case.

On this point, notwithstanding the Sections referred by Mrs. Bureau in her letter, and more particularly in the first three paragraphs of page one, we would remind the employer of the attachments and studies that the employer itself submitted concerning the policy on harassment in the workplace. I refer here to the Treasury Board document of 3 January 1995, signed by Mr. R.J. Giroux, which states on page 2:

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Decision Page 9 “Please put this revised policy into immediate effect”.

And on page 13, in the “Grievance” paragraph: “If an employee decides to submit a grievance.... and on the following page the sentence “Pursuant to an agreement between the Treasury Board Secretariat and the Public Service Commission, the latter will hear complaints of harassment.”

And in another document from the Department of Justice dealing with harassment in the workplace, harassment is defined in paragraph 2 of page 3, and page 4 states:

“harassment also relates to any abuse of power that involves the improper exercise of authority or power deriving from a position with a view to compromising the employment....”

And on page 15 and following of the guidelines, the Department of Justice defines the role of the Public Service Commission, in particular referring to:

a complaint to the Investigations Directorate of the Public Service (harassment unrelated to a reason included in the Canadian Human Rights Act).

which is the case at present, since it relates to an abuse of authority, among other things.

The Treasury Board, in its September 1994 study on harassment in the workplace, devoted long Sections to harassment in the workplace and in particularly to the question of abuse.

I also refer to the grievances document, and more particularly to paragraph 9.2.1 General Provisions of Volume 1 Chapter 13, Volume 7, chapter 5, chapter 6 and chapter 13, and to the Public Service Staff Relations Act (PSSRA, Sec. 91-101, Regulations and Rules of Procedure of the Public Service Staff Relations Board, Sec. 69-90), where paragraph “a” states:

“A grievance is a written complaint that an employee may submit concerning terms and conditions of employment”.

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Decision Page 10 The Assistant Deputy Minister, Jean-Claude Demers, considering as he himself states that harassment in the workplace is a very serious matter, issued a policy in a memorandum dated 27 January 1995, which refers on pages 13 and 14 to “grievance”:

“Pursuant to an agreement between the Treasury Board Secretariat and the Public Service Commission, the latter will investigate complaints of harassment ...”

which show, among other things, that the Assistant Deputy Minister has adopted the same policy as the Treasury Board.

And in the Directive of the Deputy Minister of Justice, Mr. George Thomson, number 189SM of 16 February 1996, we find:

“I am very pleased to announce the new policy of the Department of Justice with respect to dispute settlement. This policy represents a further stage in the Department’s commitment to provide high-quality legal services.”

And in the “Goals” paragraph, the Deputy Minister adds: “Consistent with government policy, the Department encourages the use of the various mechanisms for dispute settlement, in all appropriate circumstances.

and further on: “Recourse to dispute settlement mechanisms is an affirmation of two principles in the Department’s mission statement: “To assist the Minister in the task of ensuring that Canada remains a just and law-abiding society”.

The Department issues laws, and publishes manuals on harassment, but when it comes to enforcing them, it seeks to escape its responsibilities, by failing to recognize that its objections were submitted late, and ignoring all the fine statements and speeches that it has made on the subject.

PSSRB: 166-2-27289 (a) Mrs. Bureau states that Mrs. Beaulieu was employed “in a managerial or confidential capacity”. There is no definition to my knowledge of “confidential capacity”, since all employees at all levels of

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Decision Page 11 Departments occupy, I should assume, a position of trust, even the Minister’s floor sweeper.

Nevertheless, we must refer here to the Treasury Board’s definition of LA-1, Chap. 3-1, where LA-1 is dealt with in the description of salary levels on page C-1:

LA-1 “Legal advisers at this salary level perform legal work under general supervision”.

A reading of this paragraph does not suggest a Management position. Furthermore, in the description of Mrs. Beaulieu’s tasks, we read:

“Under the supervision of a more experienced legal adviser, to perform legal work of a kind such as to acquire the training and experience necessary to obtain employment at a higher level.”

As can be seen, there is nothing in her tasks that would allow Mrs. Bureau to connect Mrs. Beaulieu’s job to Section 2 of the Act.

(b) With reference to Mr. Marcel Gauvreau, and the notes are available to demonstrate this, Mrs. Bureau herself states in paragraph 2 of her letter:

“The response at the last level must have been made without taking account of the questions that she had asked the investigator.”

The case speaks for itself: a peremptory plea has been entered, despite her numerous appeals, as demonstrated in the record submitted to the deputy minister. In the face of repeated questions, the investigator, Mr. Baron, stated that he could no longer remember, he did not have his notes, and he was not in a position to reply to Mrs. Beaulieu’s questions...

As to the fourth paragraph of Mrs. Bureau’s letter, which states that the grievance does not relate to a suspension or financial penalty nor to any disciplinary action, it is appropriate to refer to complaint 166-2-27313 which is the result of this first grievance lodged by Mrs. Beaulieu against Mr. Marcel Gauvreau.

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Decision PSSRB: 166-2-27335 Mrs. Bureau states in paragraph 2 “These proceedings terminated; the department’s official counsel has not been completed”.

The department’s counsel forgets that Mr. Grosleau of the Staff Relations Branch has been trying in vain, since last December, to arrange a meeting with Mr. Mayrand, who seems to be very busy. In our letter of 4 June 1996, we indicated to Mr. Grosleau that more than ample time had passed, and that we were referring the whole affair to the Board.

The other reasons invoked are the same as those cited at the beginning of this letter. Consequently, there is no need for us to comment further.

PSSRB: 166-2-27314 The departmental counsel forgets that if it had not been for the complaints of abuse of authority and breach of ethics against Mr. Pépin, there would never have been a letter of dismissal, as mentioned in complaint no. 166-2-27313.