FPSLREB Decisions

Heard at Ottawa, Ontario,
July 4 and 5 and October 16, 2018.

REASONS FOR DECISION

I. Introduction

1        Dr. Margaret Haydon’s employment was terminated in 2004. In a decision issued in 2011 (Chopra v. Treasury Board (Department of Health), 2011 PSLRB 99), I upheld her termination. On judicial review, the Federal Court (in Chopra v. Canada (Attorney General), 2014 FC 246) referred her termination grievance back to me for redetermination, in accordance with its reasons (upheld by the Federal Court of Appeal (FCA) in 2015 FCA 205). In the redetermination decision (Chopra v. Deputy Head (Department of Health), 2016 PSLREB 89), I overturned Dr. Haydon’s termination and substituted a 20-day suspension. I retained jurisdiction over the implementation of the decision as follows at paragraph 113:

[113] I will retain jurisdiction to address any issues relating to the implementation of this determination of the appropriate disciplinary sanction. I did not hear submissions from the parties on the appropriate remedy should the termination grievance be allowed and a lesser penalty substituted. I will leave the issue of the appropriate remedy to the parties to resolve. I will retain jurisdiction for 120 days in case the parties are unable to reach an agreement.

2        The Department of Health (“Health Canada”, or “the employer”) filed a judicial review application of my decision, on three grounds: (1) I had denied procedural fairness by failing to afford the employer an opportunity to make submissions on the appropriate remedy, (2) I had failed to comply with the Federal Court’s order by not affording the parties an opportunity to make submissions on remedy, and (3) the substitution of a suspension for the termination was unreasonable because the employment relationship was unsalvageable. In Canada (Attorney General) v. Haydon,2018 FCA 88, its decision of May 4, 2018, the FCA dismissed the application for judicial review as premature. It reached the following conclusion at paragraphs 6 to 8:

[6] The administrative process will therefore not be complete until the adjudicator has exercised or declined to exercise the jurisdiction that he retained. Depending on what the adjudicator decides concerning the scope of that jurisdiction and its appropriate exercise, the issues raised by the Attorney General in this application may fall away, leaving no need for judicial determination.

[7] For example, if the adjudicator concludes that his jurisdiction extends to ordering pay in lieu of reinstatement, and he makes an order of that kind, the Attorney General’s concerns about returning Dr. Haydon to an unsalvageable employment relationship may disappear. If issues remain between the parties, and one or other of the parties then seeks judicial review, the Court will have the benefit of the adjudicator’s findings and perspective as expressed in his further decision....

[8] For these reasons, I would dismiss this application as premature. I would do so without prejudice to the Attorney General’s entitlement to raise the grounds that she now raises (along with any other proper grounds) in a further judicial review application after the proceedings before the adjudicator are concluded....

3        On July 4 and 5, 2018, an oral hearing was held with respect to the implementation of my decision, which was followed by written submissions on July 26, August 31, September 21, and September 24, 2018. The parties agreed to an additional oral hearing day, on October 16, 2018.

4        At the beginning of the hearing, the parties provided documents and news articles to be introduced as exhibits. An objection was raised to introducing them. They related to demographics and labour market trends. I ruled that they were of limited relevance to the proceeding. However, they did provide some context for the parties’ submissions. Therefore, I allowed them to be introduced but reserved my decision on the weight to assign them, which I indicated would be little to none. However, I indicated that I would reserve my decision on that weight until after final submissions were made.

5        After the first two hearing days in July 2018, the parties provided further written submissions. The employer objected to some of them on the basis that they were not proper reply submissions. The hearing was reconvened in October 2018 to address this issue as well as the issue of further testimony (dealt with later in this decision). I allowed the written submissions in the interests of having full submissions with respect to the issues in dispute.

6        Dr. Haydon (“the grievor”) testified on July 4, 2018. The employer raised an issue in its written submissions about an appearance she made in the media after her termination, in contradiction to her earlier testimony that she had not interacted with the media in any way after the termination of her employment. Her counsel submitted that she should be allowed to testify on this narrow issue. On an exceptional basis, I allowed her to testify. I indicated that it was generally not appropriate to recall a witness after the close of his or her testimony, as this evidence could have been elicited in cross-examination. However, the evidence was relevant to the issues before me, and it was preferable to have it on record.

7        On April 1, 2005, the Public Service Labour Relations Act (PSLRA), enacted by s. 2 of the Public Service Modernization Act (S.C. 2003, c. 22), was proclaimed in force. Pursuant to s. 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act (R.S.C., 1985, c. P-35; PSSRA).

8        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; “PSLREBA”) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“PSLREB”) to replace the former Public Service Labour Relations Board (“PSLRB”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, as I was in the present case, may continue, at the request of the Chairperson of the PSLREB, to hear and decide any grievance that was before the adjudicator before that day, and continue to exercise the powers of an adjudicator as set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

9        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act.

A. Remedies requested

10        The grievor requested the following remedies:

• immediate reinstatement to her former position;
• full back pay, to the reinstatement date;
• the restoration of all leave entitlements (vacation leave, sick leave, and other entitlements under the relevant collective agreement) for the time that has passed since the termination of her employment;
• a gross-up of damages to account for income tax implications, or in the alternative, structuring payments to minimize those implications;
• the reimbursement of professional fees;
• full pension credit from the termination date to the reinstatement date, including updating all her contributions; and
• that the employer provide appropriate training and any other support necessary to help her return to work.

11        The employer’s position was that reinstatement was not appropriate and that pay in lieu of reinstatement was the appropriate remedy. It also submitted that the grievor had not mitigated her damages and that she should receive no payment for damages.

II. The issues

12        The issues related to the implementation of my decision in 2016 PSLRB 89 with respect to Dr. Haydon are as follows:

1. Does an adjudicator have jurisdiction to order payment in lieu of reinstatement, and if so, should such a payment be ordered?
2. Did the grievor meet her duty to mitigate her damages?
3. What amount of damages is the grievor entitled to?
4. Should those damages be subject to either a gross-up or structuring to limit her income tax liability?
5. Is the grievor entitled to benefits under the relevant collective agreement for the period in which she did not work?
6. What are the pension implications of reinstatement?
7. Is the grievor entitled to the reimbursement of registration fees?
8. Is it appropriate to order the employer to provide training for the grievor?

III. Summary of the evidence

13        Dr. Haydon was 55 years old when she was terminated on July 14, 2004. She turned 65 in 2014. As of this hearing, she was 69.

14        The grievor had 22.5 years of service with the federal government at the time of her termination. She had worked for Health Canada for 21 years.

15        At the time of her termination, she was on sick leave, with an estimated return-to-work date of November 30, 2004. Dr. Haydon produced a series of doctor’s notes that certified that she was not able to work, and the last one covered to November 30, 2004. She testified that the time off was “stress leave”. She testified that she did not pursue other certificates from her physician after November 30, 2004, because her employment had been terminated.

16        The grievor testified that she did not look for work after her termination. She stated that she was too busy with the grievance process and the adjudication. She testified that she had “no time to think about anything else”. In cross-examination, she stated that she did not keep track of her time spent preparing and attending the adjudication hearing. She agreed that there were periods when she did not attend or prepare for hearings.

17        Dr. Haydon retained her membership in the College of Veterinarians of Ontario and other veterinary associations. She testified that she opted for a non-practicing or retired membership status due to the cost of full membership. She attended continuing learning events after her termination, at which she testified that she was ostracized.

18        She testified that the termination was financially and emotionally distressing. She testified that the adjudication hearings were stressful and that she experienced crying bouts as well as poor sleep. She also referred to a fainting episode, for which she did not seek medical attention.

19        The grievor received Employment Insurance (EI) benefits for approximately four or five months after the termination. In cross-examination, she stated that EI officials did not require her to look for employment.

20        The grievor testified that she did not apply for veterinarian positions because a return to clinical practice would have required retraining and because of the stigma of having been fired. She testified that she had been away from private veterinary practice for many years and that she would have required extensive retraining. She also testified that she could not just leave a job to attend a hearing.

21        In cross-examination, the grievor was asked whether she had looked for work at a pet store. She testified that her area of expertise was cattle and not pets. She was also asked if she had looked at gardening jobs (a reported volunteer activity). She stated that due to the ongoing adjudication, her availability for work was unpredictable. She was also asked if she had approached whistle-blowing organizations, which had supported her and her colleagues, for employment. She testified that she had not because it might have “put them in jeopardy”, and she had not wanted them to feel obliged to hire her. She also testified that she did not think she was qualified for such work.

22        Dr. Haydon applied for her public service pension in 2006. She applied for Canada Pension Plan (CPP) benefits and Old Age Security (OAS) in 2014, at age 65. She testified that had she waited until age 70, those benefits would have increased.

23        The grievor testified that when the first adjudication decision was rendered in 2011 (2011 PSLRB 99), she still felt that there was a possibility of reinstatement. She also testified that the media coverage re-stigmatized her and affected her job opportunities. She also testified that she thought reinstatement remained a possibility in 2013.

24        The grievor was asked how long she would have worked had her employment not been terminated. She stated that it was “hard to guesstimate”. She stated that she was still healthy. She testified that she would have worked “definitely” to age 65 and likely past that age.

25        The grievor testified that she economized after her employment ended by shopping at thrift stores and by purchasing larger items on sale.

26        The grievor testified that she had been involved in volunteer activities since her termination of employment, including in gardening and with an artists’ association.

27        On September 26, 2016, the employer wrote to the grievor’s counsel with respect to the implementation of the September 22, 2016, decision (2016 PSLREB 89). The employer asked for evidence of mitigation efforts and tax returns for the relevant years. It also noted that if Dr. Haydon was considering returning to the workplace, additional information was required, in its words “... including but not limited to an updated curriculum vitae, updated competencies for the work to be performed, updated security clearance and any other information which would be necessary for workplace reintegration”.

28        In correspondence dated December 13, 2016, counsel for the grievor stated that more time would be required, for two reasons. Firstly, it was taking longer than expected to locate some of the requested information, and secondly, when the employer filed its judicial review application, the grievor was under the impression that the implementation of the decision would be suspended. The employer consented to an extension of time.

29        On February 13, 2017, counsel for the grievor provided the requested income tax returns, information concerning memberships in veterinary medical associations, and a curriculum vitae (CV) that covered the period up to her termination. He noted that an updated CV would be sent soon.

30        In correspondence dated March 14, 2017, the employer’s counsel noted that additional information was required in the form of an updated CV “... including specific details supporting her maintenance of the competencies necessary for the work in clinical evaluation”, along with her updated security clearance.

31        In correspondence dated June 21, 2017, the parties requested that I remain seized while they pursued mediation to help negotiate a resolution to the implementation problem. The Federal Court of Appeal issued an order staying the judicial review proceedings for 90 days, to allow the parties an opportunity to negotiate a settlement.

32        Ultimately, mediation was unsuccessful, and on September 5, 2017, the Board was advised that a hearing was necessary to address the remedial aspects of the September 2016 decision.

33        On October 3, 2017, counsel for the employer sent a letter to the grievor’s counsel, requesting the following information for Dr. Haydon’s return to work:

• since Dr. Haydon was on certified sick leave at the time of her termination, confirmation of her fitness to return to work was required;
• the completion of an enclosed security clearance application;
• specific details that would support that she had maintained the competencies necessary for the clinical evaluation work done in Health Canada’s Veterinary Drugs Directorate; and
• an up-to-date CV to help the employer identify training needs.

34        In the letter, the employer noted that an updated CV was “... not imperative for her return to work”. It reiterated its requests in correspondence dated November 9, 2017.

35        On February 21, 2018, counsel for the grievor provided tax information for 2016, professional licences and membership evidence, a security clearance form, and a medical certificate clearing the grievor to return to work.

36        With respect to the security clearance form, Dr. Haydon testified that she understood that completing it was necessary for her to return to work. She testified that she tried to contact the employer to seek clarification on the form but that she did not receive a reply. She also stated that she was not computer literate enough to email the form.

37        Nonetheless, on March 2, 2018, the grievor’s counsel provided the grievor’s revised CV. At the hearing, the employer’s counsel asked the grievor about her CV and her reference in it to her termination. She wrote in her CV that she was wrongfully dismissed from Health Canada by Diane Kirkpatrick and referred to the substitution of a 20-day suspension. She testified that she did so because if any question arose as to what had happened, it was the truth.

38        On March 16, 2018, the employer sent a new security clearance form for the grievor to complete.

39        During her testimony in July 2018, the grievor testified that she did not recall speaking to the media after being terminated. However, the employer’s written submissions noted her appearance in 2012 in a documentary piece on the CBC television program The Fifth Estate.

40        In her testimony in October 2018, she testified that she had “totally forgotten” that appearance. She stated that there was not much in the documentary about her and that it was more focused on her co-grievor, Dr. Chopra. She testified that she watched it only once, when it initially aired. She also testified that it had not been her intention to mislead. In cross-examination, she testified that the documentary “did not stick” in her memory. She also stated that it “doesn’t have significance for me in my personal life anymore”.

IV. Summary of the arguments

A. Pay in lieu of reinstatement

1. For the grievor

41        The grievor’s counsel submitted that I did not have jurisdiction to order pay in lieu of reinstatement. He submitted that I had already made this determination and that therefore, I was functus officio. In other words, he argued that since I had already ruled on this issue, I no longer had the jurisdiction to revisit that determination. In the decision of the PSLRB in 2011 PSLRB 99 at para. 832, I ruled as follows, with respect to Dr. Lambert, a grievor in that case:

[832] The employer argued in its submissions for Dr. Chopra’s termination that compensation in lieu of reinstatement was the appropriate remedy were the grievance allowed. It did not make similar submissions in this grievance. However, I will address that remedy. The employer submitted that the Federal Court of Appeal’s decision in Gannon v. Canada (Treasury Board), 2004 FCA 417 was not determinative of the power of an adjudicator to order compensation in lieu of reinstatement. I disagree. The Court’s ruling is clear. An adjudicator does not have the power under the PSSRA to award compensation in lieu of reinstatement. Therefore, I will order Dr. Lambert reinstated to his position at the employer.

42        Counsel also referred me to the decision in Gannon v. Canada (Attorney General), 2004 FCA 417, which held that under the PSSRA, an adjudicator did not have jurisdiction to order compensation in lieu of reinstatement. He also cited a number of PSLRB decisions that have applied the Gannon decision and referred me to Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107, which noted that a change in statutory language had provided the authority for an adjudicator to order pay in lieu of reinstatement.

43        Counsel also submitted that the parties always recognized that reinstatement was a possibility and that all the correspondence between them presumes that possibility.

44        Counsel submitted that the grievor’s termination had been set aside and that a 20-day suspension had been substituted for it. He argued that by definition, this meant that she was entitled to reinstatement. He also noted the pension implications of a reinstatement, in light of the 14 years of pensionable time that she is entitled to.

45        Counsel noted that the employer wanted payment in lieu of reinstatement and that therefore, it had the onus of justifying that remedy. He submitted that the employer called no evidence to support this remedy.

2. For the employer

46        Counsel for the employer submitted that I was not functus officio. She noted that no submissions had been made with respect to Dr. Haydon in the original hearing of the grievances in 2011 PSLRB 99. She submitted that although the three grievors’ grievances in that case had been heard together, separate determinations were made. She also submitted that there was no detailed analysis in that decision on Dr. Lambert as I had simply stated that I did not agree that I had the authority to order pay in lieu of reinstatement.

47        Counsel submitted that the most recent FCA decision compelled me to hear arguments on pay in lieu of reinstatement. She also referred me to Dr. Haydon’s factum in the judicial review application, which indicated that payment in lieu of reinstatement was a “live issue” between the parties.

48        Counsel agreed that reinstatement is the presumptive remedy in this case. However, she submitted that in the circumstances of this case, reinstatement is not appropriate.

49        Counsel referred me to Heustis v. N.B. Elect. Power Commiss., [1979] 2 SCR 768. She submitted that the legislative framework in that case was similar to the PSSRA. She submitted that the Supreme Court of Canada (SCC) noted the broad remedial authority of an adjudicator. She also referred me to Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, in which the Court recognized that arbitral remedial authority should not be fettered.

50        Counsel noted that s. 97(2) of the PSSRA simply states that the adjudicator is to render a decision. She noted that in Gannon, the Court did not reference s. 97(2) but relied solely on a provision in the Financial Administration Act (R.S.C., 1985, c. F-11; FAA). She submitted that I should follow the reasoning in Heustis and “arrive at a remedial option that promotes labour relations peace”. She submitted that the decision in Gannon was an anomaly and that it was clearly distinguishable.

51        Counsel also submitted that in Gannon, the FCA ordered that the adjudicator consider what lesser penalty should be imposed based on the grievor’s conduct and that it never stated that the lesser penalty could not include substituting a monetary payment for reinstatement.

52        Counsel submitted that although in the past the parties have interpreted Gannon as a bar to payment in lieu of reinstatement, this does not preclude me from looking at the issue “afresh”. She also submitted that the principle of stare decisis (or binding decisions) does not apply to adjudication decisions on an interpretation of Gannon. She stated that although Gannon has been largely interpreted as holding that under the PSSRA, adjudicators do not have jurisdiction to order payment in lieu of reinstatement, a closer and contextual examination would suggest that there could be a different interpretation and result because the FCA looked at the issue in the context of a new argument, which the Adjudicator had not considered.

53        Counsel submitted that the statutory changes in the PSLRA simply confirmed the remedial authority that adjudicators already had to order pay in lieu of reinstatement. She referred me to these cases under the PSSRA, in which pay in lieu was ordered: Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66 and 2003 PSSRB 106; Loyer v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 17; and McMorrow v. Treasury Board (Veterans Affairs Canada), PSSRB File No. 166-02-23967 (19941021), [1994] C.P.S.S.R.B. No. 130 (QL).

3. The grievor’s reply

54        Counsel for the grievor submitted that the FCA’s decision in Gannon is binding on all adjudicators. He referred me to Brown and Beatty, Canadian Labour Arbitration, 4^th ed., at para. 1:3300, which states that it is accepted that prior judicial decisions as to the meaning of legislation are binding on adjudicators. He also referred me to these cases, which have applied that principle: London Health Sciences Centre v. Ontario Nurses’ Assn. (2016), 274 L.A.C. (4^th) 167; United Nurses of Alberta, Locals 32, 33, 62, 85, 196 and 301 v. Capital Health Authority (2004), 133 L.A.C. (4^th) 385; and Canadian Office and Professional Employees Union v. Coast Mountain Bus Co. (2007), 165 L.A.C. (4^th) 141.

55        Counsel submitted that the FCA did not make any ruling on my jurisdiction to order pay in lieu of reinstatement. The court used the word “if” when referring to payment in lieu, which means that it is a live issue.

56        Counsel submitted that the parties cannot confer jurisdiction on a tribunal.

B. Mitigation of damages and amount of damages

1. For the grievor

57        Counsel for the grievor submitted that the grievor made efforts to mitigate her damages and that the employer has not met its onus of showing that she failed to mitigate her damages. He submitted that there should be no deduction from the full income loss that she incurred.

58        Counsel submitted that the employer bore the onus of demonstrating both that the grievor failed to make reasonable efforts to find work and that she would have found work. He relied on Red Deer College v. Michaels, [1976] 2 SCR 324; Evans v. Teamsters Local Union No. 31, 2008 SCC 20; and Paquette v. TeraGo Networks Inc., 2015 ONSC 4189. He also noted that the employer should have been prepared to show that a more industrious effort could have resulted in the grievor obtaining employment; see B.C. Rail Ltd. v. United Transportation Union, Locals 1778 & 1923 (1985), 22 L.A.C. (3d) 417. He submitted that the employer did not provide any evidence that the grievor could have found work and therefore that it did not meet its onus. He also submitted that it was ludicrous for the employer to suggest that the grievor could have sought employment at a pet store, given her qualifications.

59        In the alternative, counsel for the grievor argued that mitigation was a fact-based analysis dependent on the facts of each case.

60        He submitted that in the circumstances, the grievor’s retirement and receipt of CPP and OAS benefits mitigated her losses.

61        He noted that a discharged employee is typically allowed time to adjust to his or her termination; see University Health Network v. Ontario Nurses’ Association (2012), 219 L.A.C. (4^th) 237.

62        He also noted that it was simply not possible for the grievor to find employment because of the damage to her reputation caused by the employer. He referred me to Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83, in which it was recognized that negative public information about a person can affect his or her ability to find employment. He also referred me to Anderson v. Peel Memorial Hospital Assn., [1992] O.J. No. 39 (QL), in which it was found that unfair treatment by the employer affected the discharged employee’s ability to obtain employment in her field.

63        He submitted that there was widespread media coverage of Dr. Haydon before her termination and that it was public knowledge that she had been fired. She also testified that she had been ostracized at education events and that the other attendees could have been working for organizations she might have applied to.

64        Counsel referred to evidence from the hearing on the merits about her colleagues’ reactions to her speaking out and submitted that one would expect the same reactions from the industry. He submitted that based on the public knowledge of the grievor, “nobody would have hired her”.

65        Counsel submitted that the grievor had not been in private veterinary practice for about 20 years at the time of her termination. He stated that one could not expect prospective employers to retrain her. She also would have to disclose her involvement in the adjudication process and would have to be absent from work, which he submitted would be a barrier to employment. He also noted that she would have to advise a prospective employer that if she were successful in her grievance, she would have to quit.

66        Counsel submitted that the lengthy hearing and the lengthy judicial processes were not the grievor’s fault and that her damages should not be reduced because of these delays.

67        Counsel also submitted that the grievor should be credited with the leave benefits that she would have received under the relevant collective agreement from the termination date until her reinstatement.

2. For the employer

68        Counsel for the employer submitted that with respect to the mitigation of damages, the burden is not initially on the employer. She submitted that it is initially on the person who asserts damages to establish that he or she made efforts to mitigate those damages or losses, and only then does the burden shift to the employer to demonstrate that those efforts were not reasonable; see Red Deer College.

69        Counsel submitted that the grievor was required to establish that she had discharged her duty of taking the steps that a reasonable and prudent person would have taken in the circumstances. She stated that only then would the onus shift to the employer to show that jobs were available and that the steps taken to seek employment were not reasonable; see Carling O’Keefe Breweries of Canada Ltd. v. Western Union of Brewery, Beverage, Winery & Distillery Workers (1984), 20 L.A.C. (3d) 67.

70        Counsel submitted that the evidence showed that the grievor did not look for paid work. She stated that doing nothing is prima facie proof of a failure to mitigate; see University Health Network, at para. 53, citing Toronto Assn. for Community Living v. C.U.P.E., Local 2191 (2006), 153 L.A.C. (4^th) 266 (“Community Living”).

71        She submitted that since the grievor did not meet her initial burden, the employer had no onus to tender evidence.

72        Counsel submitted that no evidence was adduced that showed that the grievor was actually stigmatized and that this was the grievor’s subjective opinion. She also noted that there was no evidence that the employer made any public statements about the terminations. She submitted that all the public and media attention came from the grievors in the 2011 case and their bargaining agent.

73        Counsel noted that the grievor’s CV and her evidence at the hearing on the merits highlighted her expertise and that it was not now open to her to argue that she was not qualified for other employment. Counsel noted that the grievor had a doctorate and transferable skills that would have made her a candidate for paid employment.

74        Counsel disputed the amount of time that the grievor spent attending hearings and making hearing preparations. She submitted that this did not preclude also looking for work. She also noted that transcripts of the hearing were available.

75        Counsel submitted that the grievor made a conscious decision to apply for her pension in 2006 and that clearly, she was satisfied, as otherwise, she would have looked for work.

76        Counsel noted that the grievor did not explain how her mitigation efforts would reduce the employer’s costs in terms of damages.

77        With respect to mitigation after 2016 (when the termination was overturned), counsel submitted that the grievor completely failed to mitigate her damages. She took no steps to provide information that the employer had requested, and her actions were not indicative of someone wanting to return to work. She submitted that an information request from the employer is still outstanding. She submitted that no damages should be awarded for this period.

78        In the alternative, counsel submitted that for 2004 to 2011, a 50% discount to the damages should be awarded if some allowance is found for the stress of the termination and the requirements to attend the hearing. Also in the alternative, counsel submitted that for 2011 to 2016, the damages discount should be 75%.

79        The employer’s counsel argued that the grievor should not be entitled to annual leave credits on the basis that they were provided to her on the assumption that they would be used in the year in which they were earned (subject to carryover provisions). She submitted that the grievor did not work during these periods and therefore had no requirement for time off.

3. The grievor’s reply

80        Counsel for the grievor submitted that the first time the employer asked for security clearance information was in October 2017 and that the grievor replied by the end of November 2017, which was a reasonable delay.

81        Counsel submitted that the decision in Evans postdates the Red Deer College decision and that the Evans decision is clear that the employer bears the onus of demonstrating both that the employee failed to make reasonable efforts to find work and that work could have been found. He also referred to recent decisions that have applied the test in Evans; see Fillmore v. Hercules SLR Inc., 2017 ONCA 280; and Matheson v. Erie Mutual Fire Insurance Co., 2016 ONSC 704.

82        Counsel submitted that there is no issue of the mitigation of damages after 2016, as the grievor fully understood that she was returning to work.

83        With respect to stigma, her counsel submitted that it was a fact that the grievor has experienced it and, “no one can deny her experience.” He submitted that one could draw an inference of stigma from the grievor’s experience of being terminated in such a high-profile fashion. He also referred me to articles on whistle-blowers and stigma and submitted that it is not a question of fault but of fact when assessing stigma and its impact on mitigating damages.

84        Counsel submitted that the facts that the grievor continued to take courses and to maintain her expertise were not tested in cross-examination. He submitted that the course contents and how they would have helped her secure employment are not known. He also submitted that the employer did not put forward any evidence to support that the grievor had transferable skills.

85        He submitted that the grievor is older, that her experience and knowledge are dated, and that she would have required significant retraining. He also submitted that veterinary practices would be more interested in younger veterinarians, which would also have put her at a disadvantage.

86        Counsel submitted that after 2016, both parties requested extensions of time and that mediation was attempted. He also noted that a revised security clearance form was requested in March 2018. He submitted that these delays should not be held against the grievor.

87        Counsel submitted that the employer’s suggested discounts to the damages were excessive and that there was no evidence to support the discount percentages. He stated that any discount to the damages should be established on the same basis used when damages are discounted when an employee obtains employment. He submitted that it must be demonstrated that the grievor would have obtained employment in some position, and then, the identified income from that position would then be deducted from the lost wages. He submitted that this was the principled way of applying the principle of mitigation. He submitted that there was no evidence of such purported income in this case.

V. Reasons

A. Payment in lieu of reinstatement

88        The grievor argued that I am functus officio with respect to the issue of the appropriate remedy. In other words, she argued that I have already determined that reinstatement is the appropriate outcome. I do not agree, for the following reasons.

89        When I granted the termination grievance, I did not specify any particular outcome to that determination; I left it up to the parties to resolve. The FCA recognized this when it suggested that the employer could raise its argument about payment in lieu of reinstatement in its submissions before me.

90        The grievances of Dr. Haydon, Dr. Chopra, and Dr. Lambert were heard together. In the decision (2011 PSLRB 99), I ordered Dr. Lambert reinstated and concluded as follows at paragraph 832:

[832] The employer argued in its submissions for Dr. Chopra’s termination that compensation in lieu of reinstatement was the appropriate remedy were the grievance allowed. It did not make similar submissions in this grievance. However, I will address that remedy. The employer submitted that the Federal Court of Appeal’s decision in Gannon v. Canada(Treasury Board), 2004 FCA 417 was not determinative of the power of an adjudicator to order compensation in lieu of reinstatement. I disagree. The Court’s ruling is clear. An adjudicator does not have the power under the PSSRA to award compensation in lieu of reinstatement. Therefore, I will order Dr. Lambert reinstated to his position at the employer.

91        However, that determination related to Dr. Lambert’s grievance and not to Dr. Haydon’s termination grievance. Accordingly, I am not functus officio on the issue of payment in lieu of reinstatement as it applies to Dr. Haydon.

92        I now turn to the issue of my jurisdiction to order payment in lieu of reinstatement.

93        In exceptional circumstances, arbitrators and adjudicators have accepted payment in lieu of reinstatement as an appropriate remedy. However, in 2004 in Gannon, the FCA ruled that adjudicators under the PSSRA did not have jurisdiction to order pay in lieu of reinstatement. The employer argued that that decision can be distinguished and that it is not binding on me. For the reasons set out in this section, I do not agree.

94        I agree that the parties cannot give a tribunal jurisdiction through either their actions or statements. Therefore, the fact that the parties might have discussed payment in lieu of reinstatement is not relevant to a determination of my jurisdiction.

95        In its decision that the employer’s judicial review application was premature, the FCA did not confer jurisdiction on me to ignore Gannon. It simply noted that the employer had the right to make submissions on payment in lieu of reinstatement. I also note that the FCA did not have the benefit of submissions on the jurisdiction of an adjudicator under the PSSRA.

96        I now turn to the decision in Gannon. In the original case, the Adjudicator ordered the grievor’s termination overturned, with payment in lieu of reinstatement. In overturning that determination, the Court relied in particular on s. 11(4) of the FAA, as it read at the time, which stated that “[d]isciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph (2)(f) or (g) shall be for cause.” Mr. Gannon argued that that subsection abrogated the common law rule allowing for payment in lieu of reinstatement to the extent that it deprived his former employer of the lawful authority to terminate his employment, except for cause.

97        In Gannon, the employer argued that an adjudicator under the PSSRA had remedial powers similar to those set out in the Canada Labour Code (R.S.C., 1985, c. L-2; CLC). The Court noted that that point was not referred to in any provision in the FAA or the PSSRA that was analogous to the powers set out in the CLC. Nor did any law or legal principle suggest that an adjudicator appointed under the PSSRA to deal with a termination grievance had remedial powers similar to those found in the CLC. The FCA concluded as follows at paragraphs 26 and 27:

[26] In this case, the Adjudicator simply ignored subsection 11(4) of the FAA. Further, the Crown failed to refer the Court to any law giving the Adjudicator the right to impose a monetary payment in lieu of reinstatement. Accordingly, I am compelled to conclude that the decision of the Adjudicator as to the remedy imposed is irrational and cannot stand.

...

[27] In summary, I am unable to discern any basis for interfering with the decision of the Adjudicator that DND had cause for suspending Mr. Gannon’s employment and imposing some penalty for his wrongful acts, but that the wrongful acts did not give DND cause to terminate his employment. Therefore, in my view, the remedy imposed was inconsistent with the findings and was not permitted by the relevant legislation. Based on the evidence presented, the Adjudicator’s findings should have led to Mr. Gannon’s reinstatement and, at her discretion, the imposition of penalties other than termination for his wrongful acts.

98        As I noted in the decision on Dr. Lambert’s grievance (2011 PSLRB 99), the Court’s ruling is clear: an adjudicator does not have the power under the PSSRA to award compensation in lieu of reinstatement: see also Morissette v. Treasury Board (Department of Justice), 2006 PSLRB 10. The employer provided no cogent reason for me to deviate from the jurisprudence established by the FCA.

99        Therefore, I conclude that Dr. Haydon has a right to reinstatement to her former position.

100        As a result of this determination, I do not need to address the employer’s arguments about why reinstatement is not appropriate in the grievor’s circumstances.

B. Mitigation of damages

101        A discharged employee is required to mitigate his or her losses or damages as a result of the termination; see Red Deer College and Evans. As the FCA noted as follows in Bahniuk v. Canada (Attorney General), 2016 FCA 127:

...

[19] These comments [from Red Deer College] on the general nature of the function of mitigation in contractual damages apply equally in the unionized context. Indeed, in their leading text, Canadian Labour Arbitration, looseleaf, 4th ed. (Toronto: Thomson Reuters, 2016) at 2:1512, Donald J. M. Brown and David M. Beatty [Brown and Beatty] note that the principles from Red Deer College are applied by labour arbitrators in assessing mitigation.

...

[22] In a typical dismissal case in the unionized context, if the dismissal is set aside, the grievor is reinstated and is compensated for losses from the date of dismissal to the date of reinstatement. Monies earned from alternate employment during this period are set-off [sic] from the damages payable by the employer. Damages may also be reduced if the grievor does not take reasonable steps to find alternate work during the period between dismissal and reinstatement: Brown and Beatty at 2:1512.

...

102        The issue in this case relates to the application of the onus of establishing the reasonableness of the grievor’s mitigation efforts as well as a determination of whether they were reasonable.

103        In Evans, the SCC relied on its earlier decision in Red Deer College when it set out the onus in establishing a failure to mitigate damages. Red Deer College was a wrongful dismissal case. The SCC held that the burden was on the discharged employee to establish his loss as a result of the breach of the employment contract. The Court stated that the defendant could not be called upon to pay for avoidable losses, which would have resulted in an increase in the quantum of damages. With respect to the burden, the Court stated as follows (at page 331):

In short, a wronged plaintiff is entitled to recover damages for the losses he has suffered but the extent of those losses may depend on whether he has taken reasonable steps to avoid their unreasonable accumulation....

In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismissal. He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages. He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence on avoidable consequences....

104        In Evans, the SCC addressed the duty to mitigate in the context of the employer offering a term of employment to the discharged employee. The Court relied on Red Deer College with respect to the onus on the employer and described the test as follows: “The employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found.”

105        The duty of mitigation has consistently been interpreted by courts, arbitrators, and adjudicators as a duty to seek other employment income. The grievor pointed to no jurisprudence that suggested that mitigation included economizing or taking a pension. The damages that must be mitigated are those that are otherwise payable by the employer. It is to be expected that individuals with a decline in income will seek means to stretch their dollars. Therefore, I find that the evidence about economizing is not relevant. Similarly, taking a pension does not reduce the damages payable by the employer, and therefore, doing so is not part of the duty to mitigate.

106        The duty to mitigate requires a discharged employee to attempt to secure other employment. It is not disputed that Dr. Haydon made no efforts to find alternate employment. Her position was that this is not enough to show that she did not meet her duty to mitigate — the employer also had to show that she could have obtained suitable employment.

107        The issue of the employer’s onus when a discharged employee does not look or stops looking for employment has been approached in different ways. A line of cases states that a failure to look for employment is prima facie evidence of a failure to mitigate. Another line of cases states that the employer still has to demonstrate that work could have been found, although perhaps at a lower standard.

108        In Carling O’Keefe Breweries of Canada Ltd., the Arbitrator accepted the onus set out in Red Deer College but noted that a dismissed employee must establish that he or she has discharged the duty of taking such steps “... as a reasonable and prudent man [or woman] would take in the circumstances or, to put it another way, the duty of taking reasonable steps to mitigate his loss.” The Arbitrator held that the grievor had to be able to at least establish that he registered with the applicable government agencies, checked a job board on a reasonably regular basis, made inquiries of specific employers with which he was qualified to work, and responded to any relevant job advertisements. He concluded as follows:

...

... He would then be in a position to state to an arbitration board that there were not [sic] jobs available for him, based on his reasonable inquiry, and the onus would then shift to the employer to establish not only that jobs were available for which the employee was qualified but that the steps taken by the employee were not those which a reasonable and prudent person would take.

I cannot accept that a dismissed employee can remain idly by, or make minimal efforts at securing employment, and rationalize his lack of action on the basis of general economic conditions. The fact that there is a duty on a dismissed employee confirms to me that there is an evidentiary onus to be discharged by that employee....

...

109        In Community Living, the Arbitrator held that doing nothing to look for alternate employment was prima facie proof of a failure to mitigate.

110        The employer provided a decision from Alberta, Deputat v. Edmonton School District No. 7, 2006 ABQB 549 (appeal allowed in part in 2008 ABCA 13). In the appeal, the Court of Appeal reduced the damages to approximately three months on the basis that the employee had a duty to look for a new job. The Court held that desultory informal discussions without job applications “do not suffice.” In that case, the employee’s job search file contained only a few job applications. There was no list of prospective employers and no evidence of planning a job search. Although the small number of contacts might have been sufficient in a small community, the Court held that it was completely inadequate in a metropolitan area.

111        In B.C. Rail Ltd., the Arbitrator described the grievor’s mitigation efforts as “desultory” and stated that they did not amount to a reasonable effort to avoid an unnecessary accumulation of lost earnings. However, he then noted as follows:

...

But that conclusion, in and of itself, would not be a sufficient basis for any reduction of back pay ... To justify such a result, there must be the additional finding that “other employment opportunities were available, and of which the [grievor] ought reasonably to have taken advantage”.

...

112        The Arbitrator held that to satisfy its burden, the employer should be prepared to show that a more industrious effort could well have resulted in alternative employment. Such a showing can be made by examination, cross-examination, or reasonable inference. The Arbitrator also noted that the length of time spent unemployed is a factor. The longer a grievor remains lackadaisical, the more difficult it becomes to attribute the ongoing losses to the employer’s breach.

113        In Construction Aggregates Ltd. v. International Union of Operating Engineers, Loc. 115 (1991), 21 L.A.C. (4^th) 370, the arbitration panel concluded that the available job market is relevant, even with an absence of effort on the part of the employee at issue. However, the panel noted as follows:

...

... However, the less evidence there is with regard to legitimate efforts made by the employee, the less evidence will be required of the Employer to show there were available jobs which could possibly have been obtained. Put another way, from a practical point of view the evidentiary onus on an employer will increase in proportion to the degree of effort which has been put forth by the employee.

...

114        In that case, the panel determined that it was unlikely that the grievor would have been able to secure a job immediately and that any job would have had a lower pay rate. Accordingly, it reduced the wages claim by approximately 40 percent.

115        In my view, a grievor must demonstrate that he or she made at least some effort at mitigation by looking for work. If minimal effort is made to look for work, or if, as in this case, the grievor took herself out of the job market, the onus on the employer will be minimal. In this case, the grievor was capable of looking for work and provided no reasonable explanation for failing to do so

116        As noted in B.C. Rail Ltd., the longer a grievor remains lackadaisical, the more difficult it becomes to attribute the ongoing losses to the employer’s breach. In this case, the grievor removed herself from the job market for over 10 years.

117        As noted in Construction Aggregates Ltd., the amount of evidence required of the employer to satisfy its burden is proportional to the amount of evidence of the grievor’s legitimate efforts to find work. In this case, there is no evidence that the grievor made any legitimate efforts to mitigate her damages. In such a case, it is sufficient if the employer can demonstrate that the grievor was capable of employment.

118        As stated in B.C. Rail Ltd., the employer must show that a more industrious effort by the grievor could well have resulted in alternative employment, and the employer can meet that burden through examination, cross-examination, or “reasonable inference”. In this case, one can reasonably infer that the grievor would have been able to find alternative employment within the 12 years between her termination and the decision resulting in her reinstatement in 2016.

119        I do not agree that the employer had to identify some position that the grievor was capable of filling in order to calculate the damages. She provided no jurisprudence to support this position. As noted, arbitrators have not taken this approach when a grievor had made minimal to no efforts to find employment.

120        However, I also agree that a failure to look for employment will not always result in not awarding damages. Each case depends on its circumstances. I will now turn to some of Dr. Haydon’s circumstances.

121        Dr. Haydon testified that a stigma was associated with her termination that would have impacted her opportunities for employment. In B.C. Rail Ltd., the grievor explained that his failure to apply for jobs at other railways was based on his belief that if one was “... blackballed at one railway, you are blackballed at them all.” The Arbitrator found that more of an excuse than a reasonable explanation.

122        Dr. Haydon’s case is similar. She expressed the belief that she had been ostracized and that she suffered stigma as a result of her termination. There was no objective evidence of stigma related to her. In the absence of objective evidence of stigma as a barrier to employment, I do not accept this as a reasonable explanation for not looking for work or for not obtaining employment.

123        In University Health Network, the Arbitrator carried out a lengthy review of mitigation decisions and concluded that reasonable steps towards mitigating monetary losses between the discharge date and the reinstatement date include a period following the discharge for the employee to adjust to his or her dismissal and the need to seek alternative employment. I accept this as reasonable.

124        In Collingwood General v. Marine Hospital and Ontario Nurses' Association (an unreported case from 2010 cited in University Health Network), the Arbitrator concluded that a grievor is entitled to confine his or her job search to comparable job opportunities for a “reasonable period of time”. The Arbitrator in University Health Network noted that when alternate employment is not obtained, it is reasonable for the employee to broaden his or her search to employment that “... while not similar, is, nonetheless, within his or her capabilities.”

125        I note that Dr. Haydon was on sick leave at the time of her termination and that she had held medical certificates stating that it was expected that she could return to work on November 30, 2004. She characterized it as “stress leave”. Although the stress of being in the workplace ended on the date of her termination, I do accept that there would be a period of adjustment to a termination. In all the circumstances, I find that the adjustment period would have likely ended by November 30, 2004.

126        In addition to the adjustment time, Dr. Haydon would have required additional time to retrain for a position outside the federal government. Dr. Haydon has a PhD and expertise in veterinary medicine in the agriculture sector. She did not investigate retraining or recertification opportunities. I accept that a reasonable period would have been required for her to update her skills and to conduct a job search in a similar area. As noted, after a reasonable period, it is expected that a grievor will broaden his or her job search. In the circumstances, I find that an additional six months would have been sufficient for the grievor to prepare herself for the job market.

127        Accordingly, for 2004 to 2016, the grievor is entitled to 10.5 months of damages equivalent to her salary at the applicable rate (from July 14, 2004, until May 30, 2005).

128        I will now address the benefits issue. I also note that the grievor received EI benefits for a portion of this period.

129        When her termination grievance was upheld in 2016, the grievor’s duty to mitigate her losses ceased, as she was no longer discharged. The parties then discussed compensation, and efforts were made at a negotiated resolution, including mediation. Although the time taken to facilitate the return to work has been lengthy, I find that the delay is not primarily attributable to the grievor. In fact, in light of the employer’s position that she should not be reinstated, it is understandable that efforts to facilitate her reinstatement were problematic.

130        Although the employer has a right to ask for proof of fitness to return to work, in this case, there was no evidence to suggest that the grievor was not fit to return to work in September 2016. She was on sick leave at the time of her termination, but the last medical certificate on file states that she would have been fit to return to work on November 30, 2004. I also note that the employer did not request proof of fitness to return to work until over a year after the decision was rendered that overturned her termination.

131        In light of my finding that the grievor was entitled to be reinstated as of the decision that granted her termination grievance, she is entitled to full pay and benefits as of September 22, 2016 and ongoing.

132        The grievor requested a gross-up of damages to compensate for taxation. Since the grievor should be made whole, I find it appropriate to gross-up the monetary damages to compensate for any increased tax burden. I therefore direct the employer to pay the grievor an additional amount sufficient to cover any additional income tax liability she may incur as a result of the payment.

C. Leave credits

133        The grievor has also requested credits for leave provisions under the relevant collective agreement (vacation leave, sick leave and “other entitlements”). I was not provided with copies of the relevant provisions. In order to make the grievor whole for the period from the date of termination until May 30, 2005, it is appropriate to grant her the leave credits she would have earned during this period.

134        I have already determined that the grievor is not entitled to any damages for loss of income from May 30, 2005, until reinstatement. During this period, the grievor did not work so would not have earned leave credits. Accordingly, I decline to order leave credits for the period from May 30, 2005 until reinstatement.

D. Appropriate training

135        The parties did not make detailed submissions on the issue of appropriate training to help return the grievor to work. She did not specify the support she might require to return to work, in addition to training.

136        I note that in correspondence to the grievor’s counsel, the employer indicated that it would use the revised CV to identify training needs for the grievor. I do not know if the employer did so. However, it appears that it recognized its responsibility to provide training to help reintegrate the grievor into the workplace. Therefore, I decline to make any order for training in the absence of any demonstrated need.

E. Reimbursement for professional fees

137        The most recent applicable collective agreement between the employer and the Professional Institute of the Public Service of Canada (for the Health Services Group) provides at article 21 that the employer shall reimburse an employee for the payment of membership or registration fees to governing bodies when “... the Employer is satisfied that the payment of such fees is a requirement for the continuation of the performance of the duties of the employee’s position.”

138        In light of my finding that the grievor is not entitled to damages from 2005 until 2016, there is no entitlement to a reimbursement for professional fees during this period. The collective agreement also provides that the employer must be satisfied that the payment of fees is a requirement for the performance of the duties of the employee’s position. In the periods in question (2004 until today), the grievor has not been performing the duties of her position. Accordingly, I find that she is not entitled to reimbursement for professional fees.

F. Pension benefits

139        I conclude that the grievor is entitled to payment for the value of her pension entitlement for the period from the date of termination date until reinstatement. The grievor lost a significant benefit with the loss of pension contributions. In keeping with the “make whole” principle, she should receive the value of the lost pension contributions for the period from the date of termination until May 30, 2005. Although I have found that the worker failed to mitigate her losses after May 30, 2005, I also recognize that even if she had mitigated her income loss, her employment would not likely have been with an employer under the Public Service Superannuation Act (R.S.C., 1985, c. P-36). Accordingly, I find it appropriate that the grievor receive the value of lost pension entitlements from the date of termination until her date of reinstatement.

140        If she had been employed between July 14, 2004 and September 22, 2016, the grievor would have paid her share of the pension contributions during this period and any calculation of lost pension entitlement should take into account these required contributions.

141         I did not receive detailed submissions on the calculation of lost pension entitlement. I will leave this for the parties to discuss, and I will retain jurisdiction to address any issues that they are not able to resolve with respect to amounts owing.

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

VI. Order

143        The grievor is to be reinstated to her position with the employer, effective September 22, 2016, with full pay and benefits.

144        The grievor is to be paid damages equivalent to 10.5 months of salary, based on the applicable rate of pay between July 14, 2004 and May 30, 2005.

145        The grievor is to receive a reinstatement of leave credits from July 14, 2004 until May 30, 2005.

146        The grievor is entitled to an additional amount of money sufficient to cover any additional income tax liability arising from the payment of monetary damages

147        The grievor is to receive a payment for the value of lost pension entitlement for the period from the date of her termination until September 21, 2016.

148        I retain jurisdiction to address any issues relating to the implementation of this decision for a period of 120 days.

February 20, 2019.