FPSLREB Decisions

[1]      On February 19, 1999, Claude Carignan, a plumber at Ste. Anne's Hospital in Ste-Anne-de-Bellevue, was dismissed for incompetence in the performance of his duties. In a letter dated that same day, Rachelle Corneille Gravelle, the Hospital Administrator, indicated to Mr. Carignan that his work performance had failed to meet the standards expected by the employer for many years. She wrote that he had been informed of this situation a number of times, as well as of the employer's intention to proceed with his dismissal failing significant and sustained improvement. His performance having deteriorated over the past year, she had decided to proceed with his dismissal.

[2]      On February 19, 1999, Mr. Carignan filed a grievance against his dismissal, indicating that he considered Ms. Corneille Gravelle's letter to be unfair and unjustified. In his grievance, he asked that the decision to dismiss him be rescinded and that he be able to return to his position with no loss of salary or benefits, retroactively. Mr. Carignan's grievance was dismissed at the final level of the grievance process. On June 8, 1999, the bargaining agent, the Public Service Alliance of Canada (the Alliance), proposed that the matter be dealt with through mediation and shortly afterward the employer accepted this proposal.

[3]      The mediation took place on Thursday, January 20, 2000, and on January 21, 2000, Cécile LaBissonnière, an alternate dispute resolution officer at the Alliance, wrote to the Board (Exhibit E-2a):

[TRANSLATION]

Please note that an interim agreement has been reached in the above-mentioned case. The grievance will be withdrawn from adjudication as soon as all provisions of the agreement have been implemented.

[…]

[4]      Jean-Charles Cloutier, a Board Member at that time, was acting as mediator in this case and on January 24, 2000, he wrote in his report on the progress of the mediation that a settlement had been reached in this case.

[5]      On May 25, 2000, the Board received a copy of a letter from Mr. Carignan to Ms. LaBissonnière in which he asked that the interim agreement be withdrawn [TRANSLATION] "since the benefits presented at the mediation session are completely different from those imposed on me." On June 21, 2000, Ms. LaBissonnière wrote to the Board that the Alliance was withdrawing its support for Mr. Carignan in this case. She indicated as follows in her letter:

[TRANSLATION]

In January we informed the Board that the parties had reached an agreement during the mediation session of January 20. We consider that the employer has honoured its side of the agreement. However, although Mr. Carignan signed the agreement during the mediation session, as well as a letter indicating that he wanted to take his retirement, he recently informed us in writing that he wanted the agreement to be withdrawn. Given this change of heart on his part, the Alliance has no choice but to withdraw its support in this case.

[…]

[6]      On July 5, 2000, Diane Lemelin wrote to the Board that she was now representing Mr. Carignan in this case. She indicated in her letter that, further to an access to information request, Mr. Carignan had obtained his file from the employer and had reviewed a letter dated January 22, 2000, from Ghyslaine Desjardins, a human resources advisor for the employer, to Dr. Carole Leclair of Health Canada.

[7]      According to Ms. Lemelin, Ms. Desjardins had tried in her letter to influence Dr. Leclair in her decision on Mr. Carignan's application for medical retirement. On April 18, 2000, Dr. Leclair had informed Mr. Carignan that his application for medical retirement had been turned down. Ms. Lemelin thus concluded that, through that letter, the employer had intervened in the performance of the agreement entered into during the mediation session of January 20, 2000, in order to reduce its scope, at least with respect to the medical retirement.

[8]      On October 2, 2001, Stéphan Bernier wrote to the Board to indicate that Ms. Lemelin was no longer representing Mr. Carignan in the case and that he was no longer being represented by counsel in the case. However, Mr. Bernier indicated that he was representing Mr. Carignan in his applications to the Commission de la santé et sécurité au travail (CSST) and that he had been mandated by him to request that the Board not hold any hearings in this case as long as his applications to the CSST remained unresolved.

[9]      On December 17, 2001, Georges Hupé, senior staff relations advisor at the Treasury Board Secretariat, wrote to the Board that, in the employer's view, the Board did not have the jurisdiction to hear the grievance, given that an agreement had been signed during the mediation of January 20, 2000. He indicated that no conditions had been presented when the agreement had been signed and that it was thus binding. The employer remained willing to honour the signed agreement but was unable to do so since Mr. Carignan was refusing to cooperate and honour his side of the agreement.

[10]      On February 25, 2003, Mr. Carignan wrote to the Board to request that the hearing in this case, which was supposed to start on April 29, 2003, be postponed. He explained that he wanted the Board to be able to rule on his complaint against the bargaining agent under section 23 of the Public Service Staff Relations Act (the Act) before proceeding in this case.

[11]      On March 11, 2003, Mr. Hupé indicated to the Board that he objected to Mr. Carignan's request for a postponement since the case had already been dragging on for a long time, thus causing prejudice to the employer. On March 11, 2003, the Board wrote to Mr. Carignan to inform him that his request for a postponement had been refused.

[12]      On March 21, 2003, Marc Tremblay wrote to the Board that he was representing Mr. Carignan and that he was asking the Board to reconsider its decision to refuse Mr. Carignan's request for a postponement in this case. He explained that the purpose of the complaint that Mr. Carignan had filed under section 23 of the Act had been to obtain a decision by the Board that would enable Mr. Carignan to be represented by a lawyer of his choice in this case.

[13]      On April 11, 2003, Hélène Brunelle, representing the employer, wrote to the Board in reply to Mr. Tremblay's letter on the matter of the postponement request. She argued that the complaint under section 23 of the Act did not concern the employer and that it should not have to suffer prejudice as a result of this dispute between the bargaining agent and Mr. Carignan. She further argued that the complainant was free to be represented at the hearing or to proceed alone, at his choice, and that the principles of fundamental justice were thus being complied with. She concluded, however, by indicating that the employer would be willing to proceed solely on the question of jurisdictional objection. In the event the Board were to dismiss the employer's objection, the employer would agree to a postponement of the hearing on the merits until the matter of Mr. Carignan's complaint against his bargaining agent had been settled.

[14]      On April 16, 2003, the Board wrote to Mr. Tremblay, with a copy to the employer, to indicate to him that the Board had refused his request for a postponement. The hearing starting on April 29, 2003, would address only the issue of the Board's jurisdiction to hear the grievance.

[15]      On April 29, 2003, Mr. Carignan appeared alone at the hearing. He explained that he was not being represented by a lawyer because he could not afford a lawyer's fees. He stated that in the circumstances he would be participating in the hearing under protest. I indicated to the parties that we would be proceeding informally to make Mr. Carignan more comfortable and that he would definitely be heard. The two parties were in agreement and we proceeded with the hearing of the case.

[16]      Mr. Carignan began by making it known that he was in agreement that we should proceed with the jurisdictional issue first. He submitted that the interim agreement that had been reached further to the mediation of January 20, 2000, was null and void, since the employer and the bargaining agent had made it in bad faith. Mr. Carignan stated that this bad faith had been demonstrated both during and after the mediation.

[17]      Ms. Brunelle objected to the disclosure of the comments made during the mediation and of the contents of the hearing. She nonetheless consented to having the agreement (Exhibits G-1 and E-1) adduced in evidence during the hearing, provided that its contents were not disclosed in the decision that would follow the hearing.

[18]      Mr. Carignan was the only witness to appear in this matter. He explained that before the mediation, he had been receiving CSST benefits and was also entitled to receive disability benefits from the Sun Life insurance company. Those benefits represented 70% of his salary, but the amount he was receiving from the CSST had to be deducted from them.

[19]      He explained that it was his view that the employer and his bargaining agent had acted in bad faith during the mediation. The employer and the bargaining agent had enticed him by telling him that he would be entitled to a substantial income if he took his retirement. He considered that they had misled him and that he had been trapped by them. He also believed that the agreement was temporary and that once the amounts to which he would be entitled under the agreement were known, he would be able to withdraw from the agreement and refile his grievance.

[20]      Mr. Carignan stated during cross-examination that the agreement had been drafted by Ms. LaBissonnière and had, in fact, been signed by everyone present. He testified that there was nothing in the agreement to indicate that it was an interim agreement. Mr. Carignan confirmed that attached to the agreement were two letters he had signed on January 20, 2000. The first indicated that he wanted to retire on April 20, 1999. The second, which bore the same date as the mediation session, indicated that he wished to withdraw his grievance from adjudication.

[21]      The day after the mediation, Mr. Carignan went to the employer's premises to obtain an application form for medical retirement. The following Monday, he contacted the Régie des rentes to apply for eligibility. He was told that he was not entitled, since he was receiving CSST benefits. The Sun Life insurance company also informed him that if he retired, he would no longer receive disability benefits from the company unless his retirement was for medical reasons.

[22]      Mr. Carignan adduced in evidence a letter from Ghyslaine Desjardins, a human resources advisor. Ms. Desjardins was one of the two employer representatives at the mediation and in a letter dated January 22, 2000 (Exhibit E-4), she wrote as follows:

[Translation]

SUBJECT: Assessment of Mr. C. Carignan

I am writing further to our conversation of today to update you on this file.

Mr. Carignan was assessed by Dr. Renaud on March 30, 1999. As a result of a workplace accident that occurred on November 30, 1998, Mr. Carignan suffered epicondylitis of the left elbow. The examination revealed that the injury was consolidated, with no need for treatment and no functional limitation or permanent effects. The CSST's medical assessment office confirmed our physician's statements, aside from the implications with respect to functional limitation and permanent effects, since the employee's attending physician had not commented on this matter. Accordingly, Mr. Carignan is to see his physician this week to obtain this information.

In light of our specialist's assessment, any percentage of disability would prove superfluous and we would have to contest it. I will inform you once this assessment has been forwarded to us.

As well, Mr. Carignan should be sending you a report from his attending physician confirming a permanent incapacity to perform his work as a plumber and will enquire as to the possibility of confirming this incapacity in order to obtain a disability pension. In my opinion, it is unlikely that a consolidated epicondylitis could have resulted in such limitations. It is important that we act with diligence in this case since the employee is considered to have taken his retirement in April 1999.

I hope you will find this information useful. Otherwise, please contact me for whatever additional information you may require.

[23]      On February 15, 2000, Dr. Leclair refused Mr. Carignan's medical retirement. In Mr. Carignan's view, this refusal could be attributed to Ms. Desjardins' letter. Mr. Carignan confirmed in cross-examination that his attending physician had stated that he was incapable of continuing to perform the activities of his position but that he was able to hold regular paid employment of a different type.

[24]      According to Mr. Carignan, the employer demonstrated bad faith in implementing the agreement when Ms. Desjardins wrote to Dr. Leclair on January 22, 2000, but also when she failed to forward the assessment report from the Jewish General Hospital, which was favourable to him. Mr. Carignan testified that the agreement did not include any obligation on the employer's part in one way of another for him to obtain a medical retirement.

[25]      Mr. Carignan testified that he was subsequently successful in his efforts to obtain CSST benefits. He continues to receive CSST benefits of $2,100 after taxes each month. He never followed up on his retirement application, since he would be entitled to a pension of only $357 per month. Because medical retirement had not been authorized, a penalty was applicable since he had not reached the age of 60. Furthermore, he did not have many years of service with the employer. He did not consider it advantageous to buy back his years of service in the armed forces. He should continue to receive several more years of CSST benefits which, according to him, was more advantageous.

Grievor's arguments

[26]      I do not wish to repeat Mr. Carignan's testimony, but his main arguments are as follows.

[27]      Mr. Carignan began by arguing that the agreement was temporary. He had understood that, once the amounts to which he was entitled under the agreement had been specified, he would be able to withdraw from it if he was not satisfied. In his view, the agreement was temporary and he would be able to refile the grievance.

[28]      Mr. Carignan submitted that the agreement had to be rescinded because the employer and the bargaining agent demonstrated bad faith during the mediation by misleading him and by indicating to him that retiring would provide him with a substantial income in order to entice him.

[29]      Mr. Carignan further argued that the employer demonstrated bad faith in applying the agreement. Ms. Desjardins interfered in Mr. Carignan's application for medical retirement by trying to influence Health Canada's decision, thus demonstrating the employer's bad faith.

Employer's arguments

[30]      Ms. Brunelle argued that the issue to be resolved in this case is whether an adjudicator of the Public Service Staff Relations Board (the Board) has the jurisdiction to hear this grievance. This question arises when an agreement that settles all of the points pertaining to a grievance has been duly signed by all of the parties and there is no reference in the agreement to any conditions whatsoever.

[31]      Ms. Brunelle argued that the agreement is final and binding. The fact that Mr. Carignan signed the letter applying for retirement and the letter in which he withdrew his grievance clearly indicates that he was intending to continue the process and to honour the agreement. The memorandum of understanding was prepared and written by Ms. LaBissonnière. She is an experienced representative with an excellent reputation, who has served for many years as a representative in the alternate dispute resolution process for the bargaining agent.

[32]      Ms. Brunelle argued that the mediation process is confidential and that it is well established that comments made during mediation are not admissible in adjudication. That having been said, some figures may have been discussed during the mediation but no amount and no obligation to guarantee a certain amount appear in the memorandum of understanding. Ms. LaBissonnière drafted the agreement and therefore controlled its contents and there can be no question of bad faith on the employer's part in such circumstances.

[33]      According to Ms. Brunelle, as soon as the evidence has been established of a valid and binding agreement that has been duly signed by the parties, the case can no longer be referred to an adjudicator. Moreover, the Board does not have the authority to implement a memorandum of understanding.

[34]      Alternatively, Ms. Brunelle argued that there was no bad faith on the employer's part in the implementation of the agreement. Ms. Desjardins' letter of January 22, 2000, in fact pertained primarily to a CSST case and did not attest to any bad faith on the part of the employer. Ms. Desjardins issued an opinion but it was always open to Dr. Leclair to determine whether Mr. Carignan was entitled to a medical retirement. In any event, Mr. Carignan's attending physician himself indicated to Health Canada that Mr. Carignan could hold another position and was therefore not entitled to a medical retirement.

[35]      Ms. Brunelle maintained that the failure to forward the documents also did not attest to bad faith on the employer's part. The employer was under no obligation to do this and, on the contrary, the agreement provided that it was Mr. Carignan's responsibility to see that the documents were forwarded when he applied for his retirement. His attending physician was himself in possession of these documents and he could have forwarded them. It seems clear that Mr. Carignan is not satisfied with the turn of events, which does not mean that the agreement is not valid. Moreover, if he is not satisfied with his bargaining agent's services, the remedy lies elsewhere.

[36]      In support of these arguments, Ms. Brunelle cited the following decisions: Lindor v. Treasury Board (Solicitor General - Correctional Service Canada), [2003] PSSRB 10 (166-2-30803 and 30804), Myles v. Treasury Board (Human Resources Development Canada), [2002] PSSRB 53 (166-2-30744 and 30745), Fox v. Treasury Board (Immigration and Refugee Board), [2001] PSSRB 130 (166-2-30414), Skandharajah v. Treasury Board (Employment and Immigration Canada), [2000] PSSRB 114 (166-2-24127), MacDonald v. Canada, [1998] F.C.J. No. 1562 and MacDonald v. Canada, [2000] F.C.J. No. 1902.

Reasons for Decision

[37]      The discussions that take place during a mediation session must be kept confidential or mediation would no longer be effective. Without such confidentiality, the parties would hesitate to enter into a frank and open dialogue and would not be likely to make offers that are much different from their initial positions. Soon this method of resolution would fall out of use. It is for that reason that the arbitral jurisprudence recognizes that it is in the employees' and employers' interest that comments made during a mediation session be inadmissible in evidence (see Skandharajah (supra)).

[38]      The agreement that came out of the mediation contained a confidentiality clause and similarly could not be disclosed. I have thus limited the information on the mediation and the agreement in this decision to the basics. It also sets out the grievor's allegations and the reasons for my decision in general terms.

[39]      As indicated by Ms. Brunelle, it is well established in the case law that the Board no longer has jurisdiction to hear a grievance when the parties have entered into a binding agreement arising out of a mediation session or discussion between them. The issue is thus whether there was a binding agreement between the parties further to the mediation session held on January 20, 2000.

[40]      Mr. Carignan argued that there was no binding agreement, since, in his view, the agreement was temporary. Mr. Carignan nonetheless testified that no conditions were set out in the agreement. I have examined the agreement and it does not indicate that it was temporary or conditional.

[41]      Mr. Carignan further argued that, following the mediation, Ms. LaBissonnière wrote to the Board on January 21, 2000, indicating that an interim agreement had been reached in this case. However, she indicated in her letter that the grievance would be withdrawn as soon as all provisions of the agreement had been implemented. In fact, the representative's intention was rather to ensure that the employer would indeed honour its commitments before the grievance was withdrawn. Accordingly, on June 21, 2000, she wrote to the Board that Mr. Carignan had in fact signed the agreement during the mediation session, as well as a letter stating that he wanted to take his retirement but that his recent wish was for the agreement to be withdrawn.

[42]      After examining the whole of the evidence, I have concluded that the parties did in fact enter into an agreement in the proper form on January 20, 2000.

[43]      Mr. Carignan argued that the employer and the bargaining agent had displayed bad faith during the mediation session. Mr. Carignan testified on that point that certain amounts had been discussed during the mediation. He nonetheless agreed that there was no reference anywhere in the agreement to a specific amount or any indication of any conditions whatsoever. It is frequently the case during mediation that discussions take place on different scenarios in caucus or in plenary sessions. However, given that there are no clauses in the agreement indicating an amount, a monetary commitment or a condition, I find it difficult to see how this could constitute evidence of bad faith on the employer's part.

[44]      I also examined the evidence to determine whether there was any indication of bad faith on the employer's part during the mediation. My examination also took into account the letter Ms. Desjardins wrote to Health Canada subsequent to the mediation. Nothing in the evidence I received allows me to conclude that the employer acted in bad faith during the mediation.

[45]      Mr. Carignan made a complaint against his bargaining agent under section 23 of the Act. I am not required to rule on that complaint in this decision. However, he argued that his representative had demonstrated bad faith during the mediation and I must comment on that aspect. This argument is similar to that which was made in Skandharajah (supra), in which the grievor testified that she had signed the agreement after being pressured to do so by her representative.

[46]      I have examined the evidence and I did not find any indication of bad faith on the part of Mr. Carignan's representative. As I explained earlier, discussions on different scenarios frequently take place during a mediation session. Failing any specific clause in the agreement, these would remain discussions and not a commitment. Moreover, I did not receive any evidence that Mr. Carignan was unable to give valid consent when he signed the agreement.

[47]      Mr. Carignan further argued that the employer had displayed bad faith in the application of the agreement. As J.M. Cantin, then Vice-Chairperson of the Board, wrote in Déom (Board file 148-2-107), neither the Board nor the adjudicator has jurisdiction to determine whether the terms of a settlement agreement have been observed. The Chairperson of the Board, Mr. Tarte, came to the same conclusion in Fox (supra).

[48]      Given that the Board has no jurisdiction to decide whether the conditions of the agreement and the rules were respected, it also does not have jurisdiction to determine whether one of the parties acted in bad faith in the application of the agreement. That argument must accordingly be dismissed, as well.

[49]      Having determined that the parties have settled this grievance, I conclude that there is no longer any dispute between them and accordingly no dispute needs to be resolved by an adjudicator appointed under the Act. These proceedings are thus closed.

Guy Giguère,
Deputy Chairperson

OTTAWA, July 11, 2003

P.S.S.R.B. Translation