Date: 20240816
File: 566-02-44487
Citation: 2024 FPSLREB 114
Labour Relations Act
|
Between
Sam Abdi
Grievor
and
Treasury Board
(Department of Employment and Social Development)
Respondent
Indexed as
Abdi v. Treasury Board (Department of Employment and Social Development)
In the matter of an individual grievance referred to adjudication
Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Himself
For the Respondent: Peter Doherty and Serin Cho, counsel
Decided on the basis of written submissions,
filed March 15 and 16 and April 15 and 19, 2024.
REASONS FOR DECISION |
I. Individual grievance referred to adjudication
[1] Sam Abdi (“the grievor”) was employed by the Treasury Board (TB or “the employer”) with Employment and Social Development Canada (ESDC) as a payment services officer, classified in the Program Management group, level 1 (PM-01), in Vancouver, British Columbia.
[2] By letter dated March 24, 2021, the employer terminated the grievor’s employment, rejecting him on probation. The relevant portions of the letter stated as follows:
...
As indicated in your letter of offer, your initial appointment to the Public Service on January 25, 2021, was subject to a twelve (12) month probationary period, in accordance with the governing Treasury Board Regulations.
I have concluded that despite efforts to bring your performance up to an acceptable level, you have not demonstrated that you can satisfactorily perform the duties of a Payment Services Officer. Please be advised that this decision is based on careful consideration of your performance during the probationary period, specifically during the classroom training as you did not pass three (3) out of five (5) tests.
By the authority delegated to me by the Deputy Minister, under section 62(1) of the Public Service Employment Act (PSEA), I hereby give you notice as required by section 62 (2) of the PSEA, of my decision to terminate your employment during probation effective today. You are entitled to a two-week notice period according to PSEA Regulations establishing Periods of Probation and Periods of Notice of Termination of Employment during Probation. You will be paid two (2) weeks’ compensation in lieu of notice, representing an amount equal to the salary you would have been paid during the two (2) week notice period.
An employee terminated during the probationary period may grieve the decision by filing an individual grievance under Section 208 of the Federal Public Sector Labour Relations Act.
...
[3] On April 26, 2021, the grievor’s bargaining agent, the Public Service Alliance of Canada (“the Alliance”), filed a grievance on his behalf (“the grievance”), stating as follows:
Grievance details ...
We grieve the members termination while on probation. We believe the employers rejection on probation was an action taken in bad faith. Mr Abdi was not provided the necessary training and support. The employer did not provide support when the client reached out for help and accommodation which led to the failing grade.
...
Corrective Action Requested ...
-Member wishes to be reinstated
-reinstated with back pay and benefits, with interest
-to be provided proper training and support
-the be made whole
[Emphasis in the original]
[4] On March 2, 2022, the final-level grievance reply of the employer’s designated representative stated as follows:
...
I reviewed the submissions that you and your union representative, [name and position redacted], presented at the grievance consultation held on February 22, 2022, as well as all the documents that have been made available to me.
Among other things, you indicated that you experienced multiple technical and hardware issues, identified training concerns, and were in disagreement with the performance expectations in relation to the grade point cut off for written exams. In addition, you outlined personal concerns that were causing you stress.
Upon reviewing all the pertinent information, I did not find any evidence of the improper handling of your case, which would warrant my intervention.
The Employer ensured you were provided with the necessary resources and support to become a fully trained Payment Services Officer. Furthermore, although you were offered the opportunity to identify additional supports and explore the duty to accommodate on multiple occasions, you declined. Regrettably, despite efforts to assist you in meeting the requisite work requirements, you were unable to consistently meet the required performance standards. This constitutes a legitimate employment-related reason for your termination on probation.
At the final level hearing, you suggested that the Employer may be preventing you from obtaining other employment. We double checked with local management and they have not received any requests for references for you....
In addition, further to your request for your test scores to be verified, local management advised that your scores had been previously reviewed and were found to be accurate.
...
[5] On April 4, 2022, the Alliance referred his grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication under s. 209(1)(c)(i) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). The Alliance, in referring the grievance, advised the Board that it would not represent the grievor, and as such, the grievor is self-represented. On the reference to adjudication e-filing form, a question is posed to the filing party as to whether it intends to raise an issue of discrimination; to this, the grievor stated that he did not.
[6] On February 20, 2024, the employer objected to the jurisdiction of an adjudicator to hear the grievance on the ground that s. 211 of the Act does not allow referring a grievance to adjudication about any termination made under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).
[7] On March 15, 2024, the employer objected to the jurisdiction of an adjudicator to hear the grievance on the ground of issue estoppel or, in the alternative, abuse of process (“the March 15 objection”). The basis of this objection was a decision issued by the Federal Court on May 29, 2023: Abdi v. Canada (Attorney General), 2023 FC 746 (“Abdi FC”). This was a decision on an application made by the grievor to that Court to set aside the final-level grievance decision made on March 2, 2022, by ESDC’s assistant deputy minister for western Canada and the territories that denied his grievance. That grievance is the one referred to in this decision.
[8] This decision addresses only the March 15 objection.
II. Summary of the evidence
[9] The facts as set out in the grievor’s submissions to the Board are the same that were set out and reflected in Abdi FC. As such, for the purpose of context and understanding what brought this matter to this point, I have set them out as they were set out in Abdi FC. In addition, given the nature of the March 15 objection, I have also set out a portion of the Court’s reasoning. In that decision, the grievor is referred to as “the applicant”. The relevant paragraphs are as follows:
...
[5] In early 2021, the applicant received an offer to join Service Canada as a Payment Services Officer. By letter dated January 11, 2021 the applicant was hired under a term employment contract from January 25, 2021 to January 21, 2022 and was subject to a 12-month probationary period.
[6] On January 25, 2021, the applicant began to work at the Vancouver Employment Insurance Call Centre. As a new hire, the applicant participated in a “structured training program” comprising four phases.
[7] The first phase was classroom training. During that phase, the applicant was required to take five examinations. Like all new Payment Services Officers, the applicant had to achieve a minimum passing grade of 75% on three out of the five examinations.
[8] In February and March, 2021, the applicant attended the classroom training phase, mostly online due to the COVID-19 pandemic. He wrote the five examinations. Unfortunately, he did not achieve the minimum passing grade of 75% on three examinations. His marks were: 81%, 60%, 80%, 73% and 72%.
[9] After the applicant did not achieve a passing grade on the second test and on the fourth test, he met with the EDSC’s acting Team Leader to discuss the outcome, the reasons for it, how he might improve and how he could obtain employee support. The acting Team Leader confirmed their discussions by emails to the applicant dated February 26, 2021 and March 22, 2021.
[10] Following the applicant’s unsuccessful grade on the fifth test, ESDC released the applicant from his employment during probation by letter dated March 24, 2021. He had not satisfactorily performed the duties of a Payment Services Officer because he did not pass three out of the five tests as required.
[11] On April 27, 2021, with the support of his union, the applicant commenced a grievance. The grievance advised that the employer’s “rejection on probation was an action taken in bad faith”. The grievance stated that the employer did not provide the applicant with “the necessary training and support” and “did not provide support when the client reached out for help and accommodation which led to the failing grade.” The applicant made a presentation in support of his grievance dated May 14, 2021.
[12] By letter dated May 28, 2021, ESDC denied the applicant’s grievance at the first level.
[13] On June 1, 2021, the applicant transmitted his grievance to the second level. He provided a presentation with his union representative to support his grievance at a grievance consultation on September 13, 2021.
[14] By letter dated October 5, 2021, ESDC denied the applicant’s grievance at the second level.
[15] On October 6, 2021, the applicant transmitted his grievance to the third and final level. He provided a written submission for a consultation on February 22, 2022. The applicant and his union representative attended the consultation, as did the decision maker, her chief of staff and a senior labour relations officer.
[16] The next day, a request was made to confirm the accuracy of the applicant’s test scores. An email dated February 23, 2022, confirmed that the applicant’s scores had been reviewed and verified.
[17] On February 28, 2022, the senior labour relations officer sent a 9-page written memorandum dated February 22, 2022, entitled “Final Level Grievance Overview” (the “Grievance Overview”) for the decision maker’s review.
II. The Decision Under Review
[18] By letter dated March 2, 2022, ESDC issued its final level grievance response, which denied the applicant’s grievance.
...
[25] On this application, the standard of review is reasonableness, as described in Vavilov: Burlacu v. Canada (Attorney General), 2022 FC 1467, at para 14; Kohlenberg v. Canada (Attorney General), 2022 FC 906, at para 31.
[26] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision has the attributes of transparency, intelligibility and justification: Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900, at paras 2, 28-33, 61.
...
[27] The applicant’s grievance raised the following specific arguments:
· two of his test scores were just below the passing grade of 75%, and should be “rounded up” so that he would pass;
· there was inadequate training, including because the training did not appropriately account for employees’ differing needs and stresses during the pandemic;
· the applicant received insufficient support, particularly IT support, during the training phase;
· the applicant experienced several personal stressors, including the breakdown of his car, which caused them not to sleep well; and
· following communications between the applicant and the acting Team Leader, the applicant cancelled a medical appointment for which he had waited for several months.
[28] The applicant’s submissions to the Court reiterated most of these points. His written submissions were that training was online and argued that IT would respond to employees in 24 hours “if they feel like it”. His position was that the employer failed to train him and then blamed him for it. He argued that the employer had not been fair and reasonable with him, and had acted in bad faith (citing Wallace v United Grain Growers, [1997] 3 SCR 701).
[29] At the hearing, the applicant explained that training phase occurred first in person for two or three days, and then occurred through his laptop computer. He was in British Columbia but IT support was in Ontario, which meant he was alone and working remotely.
[30] The applicant submitted that he missed the 75% threshold by just one mark on the final test; to terminate his employment on this basis was unfair during the pandemic.
...
[34] I have carefully read the applicant’s grievance and ESDC’s decisions at the first, second and final levels. I reviewed his written submissions to the Court on this application and listened attentively to his articulate oral submissions at the hearing. I again considered his arguments while preparing these Reasons.
[35] Applying the principles in Vavilov and Canada Post, I have concluded that the Final Level Decision was reasonable.
...
[37] Most of the applicant’s submissions concerned whether the Final Level Decision was correct on the merits. However, as I explained at the hearing, this judicial review proceeding does not permit the Court to intervene if it disagrees with the Final Level Decision. I am not permitted to re-examine the evidence to decide what I would have done in [the] decision-maker’s place, nor can I correct the decision if I were to disagree with it. I have to determine whether that decision was “reasonable”, using standards established by the appellate courts and this Court in previous cases.
...
[Emphasis in the original]
III. Summary of the arguments
A. For the employer
1. Issue estoppel
[10] The reference to adjudication is in all material respects identical to the grievor’s application for the judicial review of the final-level grievance decision, which was dismissed by the Federal Court in Abdi FC.
[11] All three conditions for the test for issue estoppel are met, as follows:
1) the same question has been decided;
2) the Federal Court’s decision was final; and
3) the parties are identical.
[12] Both this proceeding and the judicial review application involve the same factual matrix for which the grievor seeks to overturn his rejection on probation. Abdi FC sets out the grievor’s arguments that the employer’s final-level grievance decision was unreasonable, and they are identical to the allegations raised in the grievance. The Federal Court in Abdi FC addressed and rendered a decision on each of the grievor’s allegations.
[13] At paragraphs 27 and 28 of Abdi FC, the Court enumerated the grievor’s arguments that the employer’s final-level decision was unreasonable. They are identical to those raised in his grievance and are as follows:
· two of his test scores were just below the passing grade of 75% and should be rounded up, so that he would pass;
· there was inadequate training, including because it did not appropriately account for employees’ differing needs and stresses during the COVID-19 pandemic;
· he received insufficient support, particularly information technology (IT) support, during the training phase;
· he experienced several personal stressors, including the breakdown of his car, which caused him not to sleep well; and
· following communications between him and the acting team leader, the grievor cancelled a medical appointment for which he had waited several months.
[14] In Abdi FC, the Court addressed and rendered a decision on each of the grievor’s allegations, stating as follows:
· the grievor did not point to any contemporaneous evidence that contradicted the statements or conclusions in the final-level decision, such as the statement that he was offered the opportunity to identify additional supports for him, but he declined;
· he did not contest that he was advised at the outset of his employment and that he was reminded after each of the unsuccessful second and fourth tests that he had to achieve a minimum passing grade of 75% on at least three tests, or his employment would cease; and
· he provided no basis for the Court to intervene on the argument that the final-level grievance decision would have concluded that the termination of his employment was made in bad faith as he alleged; the grievor did not identify any particular incident or conduct that supported his position.
[15] At paragraph 42 of Abdi FC, the Court held that it was reasonable to conclude that the termination of the grievor’s employment was not a camouflage, a sham, or made in bad faith.
[16] The decision in Abdi FC was final. There was no appeal to the Federal Court of Appeal.
[17] The parties in this matter are the same as those in Abdi FC — the grievor and the employer.
[18] Under s. 211(a) of the Act, the Board has no jurisdiction to hear a grievance concerning a rejection on probation, absent bad faith or camouflage. Abdi FC concluded that there was no reasonable basis for the grievor’s allegations of bad faith and camouflage, and consequently, there is no reasonable basis for the Board to take jurisdiction and hear the grievance.
[19] Given the Federal Court’s specific findings on the grievor’s allegations, and given its conclusion that the rejection on probation was reasonable, it would be highly irregular and damaging for the principle of res judicata for the Board to conclude that the rejection on probation was, nevertheless, a sham or made in bad faith.
[20] In Fournier v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 65, the Board applied the principle of res judicata when the Federal Court’s judicial review of a final-level grievance reply was found to resolve the same grievance that was before the Board. As issue estoppel is a branch of res judicata, the Board should dismiss this grievance on the same basis.
[21] The Board should not exercise its limited discretion to refuse to apply issue estoppel and hear this matter. None of the factors enumerated in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, justify the exercise of the discretion. Moreover, there is no potential injustice to the grievor. He elected to bring forward the same facts and allegations that were before the Federal Court and as such is not entitled to a second kick at the can before the Board.
[22] In the alternative, the employer submits that the doctrine of abuse of process applies since allowing the hearing to proceed would violate the principles of judicial economy, consistency, and finality, thus harming the administration of justice. The limited discretion to relitigate a matter applies only in instances in which relitigation would enhance the integrity of the judicial system, such as when the stakes in the original proceedings were too minor to generate a full and robust response.
[23] Abdi FC is a full and detailed response to the same allegations raised in the grievance. If the Board hears this matter and reaches the same result as in Abdi FC, then the relitigation will prove to have been a waste of judicial resources and an unnecessary expense for the parties. If the Board hears it and reaches a different conclusion than did the Federal Court, the inconsistency will undermine the credibility and finality of the Federal Court’s decision.
[24] The employer also submits that the doctrine of exhaustion usually requires grievors to refer their grievances first to the Board for adjudication and that only after the Board renders a decision should they seek judicial review. Allowing the relitigation of this matter would encourage future grievors to pursue simultaneous proceedings before both the Board and the Federal Court with respect to the same grievance, which would further undermine the principles of judicial economy as well as the finality and integrity of the adjudicative process.
[25] In addition to the decisions already cited, the employer referred to Butlin v. Treasury Board (Department of Public Safety and Emergency Preparedness), 2023 FPSLREB 72, Toronto (City) v. CUPE, Local 79, 2003 SCC 63, and Gosselin v. Canada (Attorney General), 2023 FC 853.
B. For the grievor
[26] The grievor responded to the employer’s objection on this point on March 16, 2024, and did so a second time on April 15, 2024. The submissions appear to be verbatim, except for a handful of lines added to the first numbered paragraph in the April 15, 2024, submission. While there appear to be more pages in the April 15, 2024, submission, this is likely due to the spacing of the lines and the differences in the font used.
[27] The grievor submitted in general as follows:
· the entire process was unfair because ESDC has vast resources against him, including managers, experts, labour relations (LR) staff, and the Department of Justice, including the Labour and Employment Law Group and TB Legal Services;
· English is his fourth language;
· he has no experience with the law and the legal system;
· the Alliance has been absent in the process;
· the employer took its “... sweet time from level one of the grievance process to tire ...” him out;
· the justice systems in most parts of the world, including Canada, does not deliver what people need, is not useful for people in most cases, and does not resolve people’s concerns;
· he did not receive a resolution;
· he questioned if anyone measured the impact of the decision on his life;
· the decision had an effect on his health, income, safety, community, and family;
· decisions in law should not destroy lives; and
· opportunity is not equally distributed across race, class, and gender.
[28] The grievor submitted that he made a request under the Privacy Act (R.S.C., 1985, c. P-21) for all the records and stated that the employer did not provide them because certain emails appear in an affidavit in the Federal Court application. He then submitted that he was clueless about how certain Federal Court rules work. He submitted that the employer’s legal experts exploited his illiteracy of the legal system, which included the striking of a cross-examination in his Federal Court application by Justice Favel. He submitted that the employer’s experts have tried to undermine his grievance by using loopholes and their knowledge. He submitted that no one cares about fairness and justice.
[29] The grievor provided excerpts from correspondence that formed part of his Federal Court application.
[30] The grievor submitted that he disagreed that the same question has been decided, stating that the following are concerns:
· he was not allowed to participate in the review of the final test by the manager of human resources;
· there was a lack of support;
· it was during the pandemic; and
· the training was online.
[31] The grievor took issue with the timing of the termination and the time frame within which he was required to return equipment.
[32] The grievor submitted that certain people had an agenda to get rid of him because he was from the wrong race ethnic group.
[33] The grievor submitted that he obtained bachelor’s and master’s degrees from Simon Fraser University in Vancouver while achieving great marks and without borrowing from anyone and that he helped his family in Asia at the time.
[34] The grievor submitted that he detests a particular manager for his decision to terminate him. He then made the following statement:
...
... The federal court’s decision I believe strongly that my termination was a camouflage, a sham and made in bad faith. In most places employer’s main objective is to support the HR, from team leader all the way up whether they are wrong or right. It is possible behind the seen tell them they were wrong, but never admit wrong. The paycheques of the Federal Court staff come from the government, so it is not an independent department!
...
[Sic throughout]
[35] The grievor submitted that teaching and training new staff online, without IT help, is bad faith, that the teachers at ESDC did not have any clue how to teach, and that they would disappear, to talk to others. He submitted that terrorizing new hires was a routine procedure.
[36] With respect to the employer’s submission that the decision in Abdi FC was final and that the grievor did not seek to appeal it, he submitted that the Alliance did not want to spend its money on him and that the employer starved him and dragged the grievance process on too long. In addition, he stated that he does not know how the appeal process works and that it is above his head. He suggested that it is final for him and then stated that he is not a disposable tissue and that it is sad that the employer harmed its former employee.
[37] With respect to the employer’s submission that the parties in this matter and in Abdi FC are identical, the grievor stated as follows:
...
... The parties are identical: In Abdi, the Griever was the applicant, and the Employer was the respondent.... Under paragraph 211(a) of the Federal Public Sector...” It is up to the Board to determine not the employer. Under paragraph 209(1) I am not satisfied, suffered economically and emotionally, and kept in limbo by the employer for ever. For instance, the employer’s legal team spent a lot of time until March 2023.
...
[Sic throughout]
[38] The grievor submitted that it was bad faith to terminate him a day in advance or before the training was over and to provide him with the letter of termination while the training was still proceeding. He further submitted that it was bad faith that the employer did not provide training and did a poor job and that it blamed him for its failure to teach the course online. He further submitted that the process was new for the employer, so it should admit to this and stop wasting his time and that of its legal team.
[39] The grievor submitted that had he had a legal team and unlimited resources as the employer did, the outcome in Abdi FC would have been much different, suggesting that it took advantage of his lack of legal knowledge to strike out the most important part of his document before the Federal Court.
[40] The grievor submitted that he is not satisfied with Abdi FC, that he seeks justice, and that it is up to the Board and that the employer should not use its persuasion to have his grievance denied.
[41] The grievor submitted that he had no idea that the grievance and the Federal Court process would take as long as they did, stating that he has a family to support and bills to pay and that he has to support extended family in Asia.
[42] Responding to the employer’s submission that he elected to bring the same facts and allegations to the Federal Court and as such is not entitled to a second kick at the can before the Board, the grievor submitted that it is not true that he brought the same facts, stating that the employer had tremendous resources and with them was able to prevent him from submitting a document and his critique on an affidavit in the Federal Court application that he characterized as fictitious. He then reiterated that he was unfamiliar with the legal system and that he was unable to defend himself and his documents, which led to the cross-examination being prevented from being presented to the Federal Court.
[43] The grievor submitted that the employer’s position suggesting that this is an abuse of process is incorrect and that the employer has been abusing its power. He submitted that it submitted fictitious stories to the Federal Court, and then he submitted that there is a lot of waste in Canada and around the world. He then commented on government subsidies.
[44] With respect to the employer’s submission on the doctrine of exhaustion, the grievor submitted that he does not know anything about it and then submitted that the employer used his lack of knowledge about it, just like it did with respect to the cross-examination in Abdi FC. He then submitted that the employer and the Federal Court should have provided him with a lawyer if they wanted a fair trial and fair justice. He submitted that the system is set up for immigrants to fail.
[45] The grievor submitted that the employer promised to allow him to apply for other federal government opportunities internally but that it did not provide him with a reference letter. He stated that the system blamed him for his failure, but it was the system that failed him.
[46] The grievor criticized the Federal Court and suggested that upper-class persons in a clique acted in a manner to contribute to his loss in Abdi FC. He submitted that the Federal Court rendered an unfair and harmful decision based on a fraction of his documentation and his illiteracy of the legal system.
[47] He submitted that the Board should quash the employer’s objection to his grievance hearing and order it to do the following:
· reinstate him with back pay and benefits;
· provide him with proper training and support; and
· make him whole and give him any other remedies appropriate in the circumstances.
[48] Attached as an Appendix B (to both his March 16 and April 15, 2024, submissions) is what the grievor stated was the written cross-examination of an employer affiant, in the Federal Court application, which was not permitted to be used in that application. What it appears to be, in different fonts and colours, is a series of questions and answers and the grievor’s submissions. On a review of the document, which comprises about seven pages, more of it than not is the grievor’s submission rather than answers by an affiant to questions.
C. The employer’s reply
[49] The grievor did not point to anything in his material that was not already raised at the Federal Court and determined in Abdi FC. The facts are identical.
[50] The employer objected to the grievor’s suggestion that his race or ethnicity were factors in the rejection on probation. In his e-filing form with the Board, the grievor clearly indicated “no” in response to this question on the form: “Do you intend to raise an issue of discrimination?” This is a new argument that never formed part of the grievance, and it should be excluded.
[51] The grievor’s allegation that the employer prevented him from submitting a document is mistaken. For clarification, the Federal Court struck the grievor’s written cross-examination of one of the employer’s affiants on the basis that it consisted of argument. In any event, this allegation is irrelevant to these proceedings.
[52] As set out in the final-level grievance decision, and as reiterated by the Federal Court, the employer did not erect any barriers to the grievor seeking new employment; nor did it receive any request for a reference for him.
[53] The employer submitted that it is not its responsibility to advise the grievor on the process. He was represented by his bargaining agent throughout the grievance process. The employer could not in good faith have advised him to refer this matter first to the Board, given that it would have objected to the Board having jurisdiction in this matter under s. 211(a) of the Act and s. 62 of the PSEA.
IV. Reasons
[54] For the following reasons, the employer’s objection to the Board’s jurisdiction is dismissed, and the matter shall be placed back in the Board’s queue for scheduling for a hearing.
[55] This decision addresses only the employer’s March 15 objection, which is predicated on the basis of issue estoppel and abuse of process.
A. Issue estoppel
[56] As set out in Danyluk, the preconditions to the operation of issue estoppel are as follows:
...
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
...
[57] The employer submitted that the three conditions for establishing issue estoppel have been met. I disagree.
[58] Of the preconditions to the operation of issue estoppel, I will first address the precondition that has been met, which is that the parties to the judicial decision or their privies are the same as the parties to the proceedings in which the estoppel is raised. Of this there is no doubt, as the judicial review application that was the subject matter of Abdi FC involved the grievor and his employer (by its privy by operation of the Federal Court Rules (SOR/98-106), the Attorney General of Canada). The decision in Abdi FC arose out of the denial of the grievor’s grievance against his termination of employment. He grieved that termination, and when that grievance was denied at the final level, he sought judicial review. This reference to adjudication is also of that same grievance against the grievor’s termination of employment from the same decision of the employer denying that grievance. The parties, who are the grievor and the employer, are the same parties as in Abdi FC.
[59] The other two preconditions, which are that the same question has been decided and that the judicial decision that is said to create the estoppel is final, are not met, for the reasons that follow.
[60] A superficial review of the facts and issues would suggest that the question that is at issue in the reference to adjudication to the Board is the same as the one that was dealt with in Abdi FC. This is logical because what was referred to the Federal Court on judicial review is the very same final-level grievance decision dated March 2, 2022, which the grievor was unsatisfied with and referred to adjudication via his grievance. However, the question before the Federal Court in Abdi FC was not the same as the question before the Board.
[61] The Federal Court in Abdi FC, at para. 37, stated the matter that it was to determine as follows:
[37] Most of the applicant’s submissions concerned whether the Final Level Decision was correct on the merits. However, as I explained at the hearing, this judicial review proceeding does not permit the Court to intervene if it disagrees with the Final Level Decision. I am not permitted to re-examine the evidence to decide what I would have done in [the] decision-maker’s place, nor can I correct the decision if I were to disagree with it. I have to determine whether that decision was “reasonable”, using standards established by the appellate courts and this Court in previous cases.
[62] The Federal Court in a judicial review application is hamstrung by what has, and has not, been done at the final level of the internal grievance process. This is in stark contrast to the matter that is to be determined by the Board. To fully comprehend the actual question or issue to be determined, what must be examined are the grievance process, the way a grievance arrives at the Board for adjudication, and the powers of the Board.
[63] The grievance process is set out in the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”). It provides that an employee who feels aggrieved by actions carried out by their employer against them may present a grievance to their employer, within a certain time frame. The grievance is then dealt with by the appropriate designated person within the employer’s hierarchy of authority. If the decision made by that person does not satisfy the grievor, they may refer the grievance to the next level in the process. This process repeats until a decision is made at the final level of the grievance process.
[64] There are usually a total of three levels established either by the Regulations or a group-specific collective agreement. It is important to note that the grievance process is internal. It is not an independent third party that reviews and decides the grievance; it is just someone higher in the employer’s chain of command.
[65] Once a decision is made at the final level of the grievance process, a grievance may be referred to the Board for adjudication, if it is one of those that fits within the category of grievances over which the Board has jurisdiction under s. 209 of the Act.
[66] Section 226(1) of the Act sets out the powers of an adjudicator. It states that an adjudicator may, in relation to any matter referred to adjudication, exercise any of the powers set out in s. 16(d) of the Act and ss. 20 through 23 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; FPSLREBA). Section 20(e) of the FPSLREBA states that the Board has, in relation to any matter before it, the power to accept any evidence, whether admissible in a court of law or not.
[67] In addition, it is well established in the jurisprudence of the Board and its predecessors that hearings before the Board are hearings de novo. In plain language, this means that the Board will hear the matter “anew”, “from the beginning”, or “afresh”, as if the matter is being heard for the first time. In short, it means that the Board is not constrained by the evidence that was brought forward during the grievance process to hear and determine the issue before it; this is in line with what is set out in s. 20(e) of the FPSLREBA. Further, and in line with these tenets, is that the Board, as a quasi-judicial independent third-party tribunal, is the master of its own proceedings, or as otherwise stated, the master of its own house (see Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560), meaning that in the absence of specific rules set by statute or regulation, it controls its procedures, subject to the proviso that it comply with the rules of fairness and, when exercising judicial or quasi-judicial functions, the rule of natural justice.
[68] This adjudicative process before the Board, including its ability to determine the evidence that it shall hear and in turn determine a question or issue, is the opposite to the role of the Federal Court on judicial review. The question being answered by the Federal Court is whether the decision at the third level of the grievance process was reasonable based on the case law and in particular the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[69] The question before the Board is not whether the decision of the employer’s designated decision maker at the third level of the grievance process was reasonable but whether the Board has jurisdiction to hear the grievance based on the employer’s termination of his employment not being legitimate under the PSEA but a sham, a camouflage, or made in bad faith.
[70] As the questions to be answered by the Board and the Federal Court are not the same, the first criteria is not satisfied. By simple logic, if the first question is not answered in the affirmative, the second question cannot be the final decision on the issue, as it has not been answered in the first instance.
B. Abuse of process
[71] For the reasons already set out in the earlier section on issue estoppel, the March 15 objection to jurisdiction on the basis of abuse of process must also fail.
[72] Logically, if the same question is not being dealt with by the two different decision makers (the Federal Court and the Board), it cannot be said that allowing the litigation to proceed would violate the principles of judicial economy, consistency, and finality.
[73] As I have determined that the questions before the Federal Court and the Board are different, it cannot be said that there is a risk of inconsistency or a risk to judicial finality. If the Board decides that it has jurisdiction to hear the matter on the basis of the termination being a sham, a camouflage, or made in bad faith, it would not necessarily be inconsistent with the decision in Abdi FC because the Federal Court’s determination was based on a different test and possibly different evidence.
[74] Finally, the employer submitted that the doctrine of exhaustion usually requires grievors to refer their grievances to the Board first and then only after a decision is made by the Board should they seek judicial review. While that is the norm, there are legitimate reasons that this does not apply in these circumstances. First and foremost, if the termination of employment was legitimately a rejection on probation under the PSEA, the Board has no jurisdiction, and the correct route to challenge that termination is to the Federal Court, by way of judicial review. However, if the termination was not legitimate under the PSEA but a sham, a camouflage, or made in bad faith, which would otherwise bring the matter within the Board’s jurisdiction, the proper forum would be the Board.
[75] Both the Board and the Federal Court Rules have short time frames within which to bring matters before them. I have no doubt that this time frame for both forums would have been such that a hearing at one would not have occurred and determined the matter within such time as to permit the launch of a judicial review or reference to adjudication, as the case might have been. In addition, the employer certainly could have sought to have the matter in the Federal Court held in abeyance pending the determination of the issues before the Board.
[76] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V. Order
[77] The objection to jurisdiction (the March 15 objection) is dismissed.
[78] The matter shall be placed into the Board’s queue for scheduling for a hearing.
August 16, 2024.
John G. Jaworski,
a panel of the Federal Public Sector
Labour Relations and Employment Board