FPSLREB Decisions

[1]   On August 17, 2001, I rendered a decision in regard to a grievance filed by Grant Gale concerning his discharge (2001 PSSRB 85). The discharge was upheld.

[2]   An application for judicial review was filed with the Federal Court, Trial Division by Mr. Gale and on October 18, 2002, Mr. Justice Rouleau dismissed the application (T 1668-01).

[3]   An application for review of Mr. Justice Rouleau's decision was made to the Federal Court of Appeal and on January 12, 2004, a judgment was rendered, stating, in part (A-633-02);

1. the appeal be allowed and the decision of the Trial Division set aside.

2. the adjudicator's decision be set aside and the matter be referred back to the same adjudicator with directions to consider the information in the August 17, 2001 letter from counsel for the respondent and to provide the parties with an opportunity to make submissions as to its effect on the outcome of the adjudication; and

3. .

[4]   On February 10, 2004, counsel for the grievor sent a letter to the Public Service Staff Relations Board (the Board), addressed to me, and said, in part:

. I will wish to make representations to you concerning whether it is appropriate for you to render a decision given the very unique circumstances of this case .

[5]   On February 20, 2004, the Board wrote to the parties and asked for written submissions as to whether it would be appropriate for me to render a decision on this matter, or whether I should recuse myself.

[6]   This decision pertains to this preliminary matter only.

[7]   On March 5, 2004, counsel for the grievor sent in his written submission on this issue and a complete text is on file with the Board.

[8]   At paragraph 7 of the letter, counsel writes, in part:

. the Grievor takes the position that you ought to decline to proceed with a redetermination on the basis that to do so is impractical and does not project the appearance of fairness.

[9]   Counsel writes, at paragraph 8 of his letter, "It is impractical because of the amount of time that has elapsed between the date of hearing and the date of resumption of the hearing". Further on, counsel writes, "It is simply not reasonable for the trier of fact and counsel to re-immerse ourselves in the case and become sufficiently familiar with the evidence or the nuances and inferences to be drawn from the evidence."

[10]   With respect to the issue of fairness, counsel for the grievor writes, in part, at paragraph 9 of his letter: "If you were to review the evidence that the Federal Court of Appeal has now ruled that you must, and then conclude, "It doesn't matter, the grievance is still dismissed", the decision would be open for criticism on the basis that the evidence was "heard" but not considered."

[11]   The employer replied to the grievor's submission on March 8, 2004, and his reply is on file with the Board. The reply states in part:

.

The Court has specifically remitted the matter to Adjudicator Potter and it would be contrary to the Court's Order to have another adjudicator hear this matter. Furthermore, it would make absolutely no sense to do so.

.

[12]   Counsel for the grievor replied on March 12, 2004, stating, in part, that the Court did not require me to complete the case and I could still decline to hear it if I felt it was appropriate to do so.

[13]   After having reviewed the parties' submissions on this issue, as well as the Federal Court of Appeal's decision itself, I have concluded that I would be in the best position to hear the parties' submissions in re-determination and decide the issue again.

[14]   Counsel for the grievor raised the issue of having the matter heard de novo before a different adjudicator during the Federal Court of Appeal proceedings. At paragraph 18 of the decision (supra) the Federal Court writes, in part:

[18]   We agree with the respondent that, in the circumstances of this case, the matter should be remitted to the same Adjudicator. . There is no suggestion here of bias. Nor is there any reasonable apprehension of bias. .

[15]   I am of the view that that very question, which was raised before the Court, was fully canvassed by the Court, as evidenced by paragraph 18 of the judgement. In light of the Court's determination, the suggestion of proceeding by way of a hearing de novo before another adjudicator would not be an efficient and responsible use of public funds.

[16]   The Court held that it was appropriate for me to redetermine the matter after considering the additional evidence and submissions of counsel. Counsel for the grievor did not persuade me that the presumption of integrity and impartiality which, the Court stressed, applied to the continuation of this case, had been ousted, such as to require my recusing myself from this case.

[17]   Consequently, I believe I am in the best position to address the issue raised by the Federal Court of Appeal, namely to take into account the information in the August 17, 2001 letter and to allow the parties to make submissions on its effect on the outcome of the adjudication.

[18]   If, after hearing the parties' full submissions on this issue, I determine that the original grievance should be sustained, I would have no hesitation in making that determination. Similarly, if I determine that my original decision to deny the grievance still stands, again, I would have no hesitation in stating that. I do not believe the passage of time prevents either from occurring.

[19]   The issue to be determined is, in my view, a very narrow one pursuant to the decision of the Federal Court of Appeal (supra). I feel this issue can be fully addressed through written submissions of the parties and I will instruct the Board officials to communicate with both parties concerning this process.