Nosistel v. Canada (Attorney General)

Nosistel v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-06-15
Neutral citation
2018 FC 618
File numbers
T-1419-16
Decision Content
Date: 20180615
Docket: T‑1419‑16
Citation: 2018 FC 618
[ENGLISH TRANSLATION]
Ottawa, Ontario, June 15, 2018
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
EVEDA NOSISTEL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The applicant, Eveda Nosistel, is a former employee of the Correctional Service of Canada [CSC], where she worked as a finance manager. Ms. Nosistel is seeking judicial review of a decision made by CSC in July 2016 in which CSC declined to pursue three grievances [Grievances] she filed about how her complaints of psychological harassment were handled [Decision]. In the Grievances, Ms. Nosistel intended to argue that CSC senior management had violated the rules of procedural fairness and of natural justice in handling her harassment complaints filed in July 2013 against four of her former colleagues at CSC. Those complaints were the subject of a CSC decision in September 2015 that reiterated the conclusions of four reports resulting from the workplace investigation carried out in response to Ms. Nosistel’s allegations [Investigation Reports]. Both the Investigation Reports and the September 2015 decision concluded that Ms. Nosistel’s complaints were unfounded.
[2] In her notice of application filed in August 2016, Ms. Nosistel sought a series of conclusions ranging from obtaining the acknowledgement of inconsistencies and violations of the principles of natural justice regarding the management of her harassment complaints to full re‑establishment of integrity and reputation, and the assurance of fair restitution. In her memorandum of fact and law filed in June 2017, Ms. Nosistel made an even longer list of remedies sought. In addition to a declaration that CSC erred in law in making its decision with regard to one of her Grievances and violated the rules of procedural fairness, she is asking the Court to set aside the conclusions of the Investigation Reports and the associated decisions regarding the management of her harassment complaints and to award her damages including, among other things, her loss of wages since August 2013 and punitive damages. In this regard, Ms. Nosistel is asking the Court to convert her application for judicial review into an action pursuant to subsection 18.4(2) of the Federal Courts Act, RSC 1985, c F‑7 [FCA].
[3] Appearing on behalf of CSC, the Attorney General of Canada [AGC] acknowledges that Ms. Nosistel’s Grievances were not subject to appropriate decisions under the formal grievance process set out in the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [PSLRA] and the Agreement between Treasury Board and the Association of Canadian Financial Officers of 2013 [Agreement] applicable to Ms. Nosistel. Therefore, the AGC agrees to the case being referred back to CSC for reconsideration by an objective party, that is, by a person who has not been involved in Ms. Nosistel’s case to date. However, the AGC is opposed to the other reliefs sought by Ms. Nosistel.
[4] At the hearing before this Court and in her written submissions following her notice of application, Ms. Nosistel emphasized that the decision that is the focus of her application for judicial review is not the July 2016 Decision on her Grievances, but rather CSC’s decision of September 2015 to accept the Investigation Reports and dismiss her harassment complaints. Ms. Nosistel states that her application is intended to raise the violations of the principles of procedural fairness and natural justice that, in her opinion, tainted CSC’s entire approach to addressing her psychological harassment complaints, from the investigation itself to all of the decisions that resulted.
[5] One thing emerges from the file submitted by Ms. Nosistel: it is far from being clear. Ms. Nosistel’s approach is variable at best and creates a sense of confusion about the real objective of her application for judicial review. The AGC has agreed to refer the case back to CSC so that the administrative decision‑maker can make the decisions it failed to make on Ms. Nosistel’s Grievances. However, Ms. Nosistel says she is seeking more and argues that, all in all, that is not the objective of her application for judicial review. Under the circumstances, I share the AGC’s opinion that Ms. Nosistel’s application raises the following three main issues:
What is the subject of the application for judicial review Ms. Nosistel submitted to the Court?
Considering the AGC’s consent to the case being referred back to CSC so Ms. Nosistel’s Grievances can be properly addressed according to the applicable procedure, what corrective measures should the Court order?
Is it appropriate to convert Ms. Nosistel’s application for judicial review into an action?
[6] For the reasons that follow, Ms. Nosistel’s application will be partially allowed. I am of the view that, under the circumstances, the case should be referred back to CSC so that the procedure for addressing the Grievances Ms. Nosistel filed can proceed, and decisions can be made by CSC in accordance with the administrative procedure in place. Contrary to Ms. Nosistel’s claims, this application for judicial review does not concern the Investigation Reports, the process followed in addressing her harassment complaints or CSC’s September 2015 decision rejecting them. The subject of the application is rather CSC’s decision on her Grievances, in fact, the lack of decisions on their merit. Furthermore, I am not convinced that the conditions are met for the Court to render the directed verdict and order the various corrective measures Ms. Nosistel is seeking. It is the role of CSC—not the Court—to evaluate Ms. Nosistel’s Grievances and first determine whether her criticisms about how her psychological harassment complaints were handled and the process followed are founded. Lastly, for both procedural and substantive reasons, this is not a situation where the Court should exercise its discretion to convert Ms. Nosistel’s application for judicial review into an action.
II. Background
A. Facts
[7] In July 2013, Ms. Nosistel filed a complaint for psychological harassment against four CSC employees and colleagues. That complaint was declared admissible in August 2013, and an external consultant to CSC began an investigation in October 2013. Since that investigation involved four people, four separate investigation reports were prepared, which were completed in August 2015. All of the Investigation Reports concluded that Ms. Nosistel’s harassment complaints were unfounded. On September 2, 2015, CSC made a decision accepting the conclusions as stated in the Investigation Reports. Since confidential information had to be redacted from the Investigation Reports, they were not finalized until September 30, 2015, and CSC’s decision to accept them was communicated to Ms. Nosistel in early October 2015. In June 2015, that is, before the Investigation Reports were published, Ms. Nosistel resigned from her position at CSC and left the federal public service.
[8] Ms. Nosistel filed three individual grievances about how her harassment complaints were handled. On each occasion, she followed the grievance process set out in section 208 of the PSLRA and article 17 of the Agreement.
[9] A first grievance on how Ms. Nosistel was treated during the investigation of her complaints was prepared on February 10, 2015, before the Investigation Reports were completed. Ms. Nosistel alleges that she received no support during the investigation and was not allowed to access the documents at key and opportune times during the process, and that the consultant and writer of the Investigation Reports did not give sufficient consideration to certain incidents. The status of this grievance remains ambiguous. Ms. Nosistel explains in her June 2017 memorandum that the grievance was [translation] “aborted” (either by her or by CSC, which the evidence on file does not make it possible to determine). The AGC states that Ms. Nosistel never took the step of taking her grievance to the second level of the grievance process, as set out in article 17.10 of the Agreement and that, in the absence of instructions from Ms. Nosistel, the grievance was not subject to a decision as part of the grievance procedure set out in the Agreement. One thing is certain: nothing in the evidence on file demonstrates that CSC addressed this grievance.
[10] On November 18, 2015, Ms. Nosistel filed another grievance about the Investigation Reports. In this second grievance, she alleges several violations in how her harassment complaints were handled, disputes the conclusion that her complaints were unfounded and describes the apparent absence of [translation] “integrity, comprehensiveness and impartiality” in the process and the Investigation Reports. In addition to a series of allegations about the investigation, the grievance also contains allegations that seem to go beyond the strict framework of the Investigation Reports, such as [translation] “an abuse of power and bad faith” that CSC managers demonstrated toward her.
[11] The Assistant Commissioner in charge of human resources management at CSC, Elizabeth Van Allen, responded to Ms. Nosistel’s grievance on January 28, 2016, informing her that the grievance was inadmissible. In her letter, Ms. Van Allen explained that, pursuant to the PSLRA, a [translation] “former civil servant cannot file a grievance unless subject to a disciplinary measure stemming from a suspension or dismissal set out in paragraphs 12(1)(c), (d) or (e) of the Financial Administration Act” and that, since the wording of the grievance contains none of these elements, it is invalid. The Assistant Commissioner added that even if she were wrong, the objectives of the Treasury Board Secretariat’s Harassment Prevention and Resolution Policy are to promote conditions that are conducive to a safe and respectful work environment and to re‑establish harmonious labour relations and that [translation] “this policy does not apply to a former civil servant.”
[12] As the AGC admitted in his memorandum of fact and law in June 2017 and his submissions to the Court, these remarks from the Assistant Commissioner were erroneous in law. Once again, in light of Ms. Van Allen’s response, CSC did not make any decision on the merit of Ms. Nosistel’s second grievance in accordance with the grievance procedure set out in the PSLRA and the Agreement and to which Ms. Nosistel had resorted.
[13] On March 4, 2016, Ms. Nosistel filed a third grievance, in which she refers to what she described as her [translation] “resignation in disguise” from CSC in June 2015, on the grounds of the same allegations she tried to make in her first two grievances. Attached to this grievance from March 2016 were her first and second grievances from February and November 2015. In a letter dated March 3, 2016, addressed to the CSC Commissioner, Don Head, and attached to her grievance, Ms. Nosistel explains that [translation] “all interactions and steps taken with CSC seemed to have been tainted by bad faith and a lack of transparency, procedural fairness, rigour and impartiality.” Ms. Nosistel added that she was now appealing to Mr. Head through this last grievance so that he could remedy the [translation] “inaction, interference and bad faith, and the direction management chose to ‘manage’ her case” that led to her resignation from the public service after 10 years.
[14] On March 29, 2016, Mr. Head responded to confirm receipt of Ms. Nosistel’s letter and to say that he had been informed that the Canadian Human Rights Commission had begun an investigation process following a complaint Ms. Nosistel had made. The Commissioner explained that CSC would [translation] “cooperate and provide the Commission with any information and document needed for its investigation.” The March 2016 response from Mr. Head provides little information on the handling of Ms. Nosistel’s third grievance.
[15] On June 14, 2016, Ms. Nosistel followed up with the Commissioner regarding her letter from March 29. She explained in this new letter to Mr. Head that [translation] “the purpose of the last letter was to ask [him] to address the consequences of the inconsistencies noted during the inequitable treatment of internal remedies” she had initiated, that she had resubmitted [translation] “the grievances not addressed by management” and that she was writing to inquire about her position and intentions for the next steps.
[16] Around July 27, 2016, the Commissioner responded to Ms. Nosistel. Mr. Head’s response was brief and terse. Mr. Head simply stated, in fewer than two lines, [translation] “that the process used to respond to your grievances was consistent with policies.” Clearly, in his response, Mr. Head did not follow up on any of Ms. Nosistel’s three Grievances. Mr. Head’s decision to refuse to intervene in the Grievances is the subject of this application to the Court, and Ms. Nosistel’s notice of application for judicial review expressly references it. Once again, one thing is clear: CSC did not make any decision on the merit of Ms. Nosistel’s third grievance in accordance with the grievance procedure set out in the PSLRA and the Agreement. The AGC acknowledges this.
B. The other orders on file
[17] Ms. Nosistel’s application for judicial review has already resulted in a number of Court orders, which further clarify the somewhat unusual context of this case and the nature of the issues the Court must now address. Three orders are notable, and it is relevant to elaborate on them.
(1) The order by Justice Roy
[18] On January 31, 2017, Roy J. issued an order dismissing a preliminary motion presented by the AGC to have Ms. Nosistel’s application for judicial review dismissed (Nosistel v Canada (Attorney General), 2017 FC 122 [Nosistel]). The AGC alleged that the decision for which Ms. Nosistel was seeking judicial review was not rendered by a federal office and, moreover, was filed out of time. In his order, Roy J. found that, despite a lack of transparency and an application for judicial review he described as confused and messy, Ms. Nosistel’s application does not seem completely without merit, to the point of dismissing it at the preliminary stage. According to Roy J., it is clear that CSC did not address some of Ms. Nosistel’s Grievances.
[19] In his order, Roy J. focused in particular on the subject of Ms. Nosistel’s application for judicial review. He indicated that Ms. Nosistel’s application is “ostensibly related to a ‘decision’ that was reportedly made by . . . Mr. Don Head” though it was not clear which decision it was (Nosistel at paras 1, 2). Roy J. consistently reiterates in several paragraphs of his order that Ms. Nosistel’s application concerns the Grievances filed and not CSC’s decision of September 2015 to accept the Investigation Reports. Given the position Ms. Nosistel subsequently adopted in her June 2017 memorandum and at the hearing before this Court about the scope of her application, it is relevant to cite the relevant passages from Roy J.’s order. Roy J. wrote that:
“The decision made on September 2, 2015 is not the one that is subjected to the judicial review, and it is important to fully understand the difference.” [emphasis added] (Nosistel at para 16);
“At issue here are the three grievances that the Commissioner, rightly or wrongly, did not handle. There lies, in my opinion, the subject of this application for judicial review.” [emphasis added] (Nosistel at para 18);
“The Commissioner had been alerted to the existence of the 3 grievances. The one dated November 18, 2015, could have been the subject of a decision in January 2016. . . . As for the two other grievances, the file does not reveal how they were handled. These are the issues in the application for judicial review.” [emphasis added] (Nosistel at para 25).
[20] Roy J.’s order therefore clearly, and repeatedly, establishes that the real issue and the subject of Ms. Nosistel’s application for judicial review is how the Grievances were handled. Given the vague and variable nature of the notice of application filed by Ms. Nosistel, Roy J. also asked her to elaborate on the details. Far from following this suggestion, Ms. Nosistel further clouded the case by stating, in the first words of her June 2017 memorandum, that her application for judicial review was to dispute the process for investigating her harassment complaints and CSC’s September 2015 decision rejecting them. In so doing, she blatantly ignored Roy J.’s inarguable conclusions on the subject of her application. I will return to this later.
[21] Nevertheless, I observe that Ms. Nosistel never appealed Roy J.’s decision; on the contrary, she heavily referenced it both in her June 2017 memorandum and at the Court hearing.
(2) The order by Justice LeBlanc
[22] On April 11, 2017, LeBlanc J. made a second order on this file. He dismissed a second motion by the AGC, who wanted to consent partially to judgment in this case by proposing that the case be referred back to CSC so it could decide on Ms. Nosistel’s Grievances. Ms. Nosistel was opposed to that motion, because the remedy proposed by the AGC was limited to referring the case back to CSC, which, rightly or wrongly, she no longer trusted, and disregarded the other remedies Ms. Nosistel is really seeking. In his order, LeBlanc J. said he was of the view that the partial solution at issue proposed by the AGC would not move the case forward. Furthermore, LeBlanc J. noted that the remedial powers of the Court are essentially discretionary in nature and that there are other forms of remedy available to the Court, including the “directed verdict” when circumstances allow it (D’Errico v Canada (Attorney General), 2014 FCA 95 [D’Errico] at paras 16–17, 20). LeBlanc J. therefore decided to leave it to the trial judge to resolve the entire case and the various remedies Ms. Nosistel is seeking.
(3) The order by Prothonotary Morneau
[23] The third order to be mentioned was made on October 11, 2017, by Prothonotary Morneau. Prothonotary Morneau dismissed an interlocutory motion by Ms. Nosistel to have sanctioned the inconsistencies and misconduct allegedly committed by CSC and counsel for the AGC in the handling of the case. In her motion, Ms. Nosistel was seeking, among other things, permission to submit a supplementary affidavit [translation] “in light of the significant events that occurred after filing her applicant’s record” and to account for CSC’s [translation] “disconcerting tactic” of returning to elements of the file that LeBlanc J. had dismissed in his order.
[24] In his decision, Prothonotary Morneau refused to allow the supplementary affidavit referring to certain alleged inconsistencies to be produced, since Ms. Nosistel had not described a situation that met the conditions for authorizing the filing of such an affidavit. Dissatisfied with the result, Ms. Nosistel appealed, but, in an order dated November 24, 2017, Justice Locke upheld Prothonotary Morneau’s decision (Nosistel v Canada (Attorney General), 2017 FC 1068 [Nosistel 2]). Ms. Nosistel also tried to appeal Locke J.’s order, but, in an order rendered on May 25, 2018, the Federal Court of Appeal dismissed Ms. Nosistel’s motion to extend the time for filing a notice of appeal of Locke J.’s decision (Eveda Nosistel v Correctional Service of Canada et al. (May 25, 2018), Ottawa, FCA, 18‑A‑13 (motion to extend the time limits) [Nosistel FCA]).
(4) Docket T‑536‑17
[25] In addition to these orders in this case, it is also relevant to note that on April 12, 2017, Ms. Nosistel filed a second application for judicial review to this Court, in docket T‑536‑17. Ms. Nosistel was seeking to have a decision by CSC to refuse to provide her with personal information following a request for access to information submitted in June 2013 set aside, and to have the Minister in charge provide her with the documents and information she was requesting. An order by Justice Annis, dated October 10, 2017, dismissing Ms. Nosistel’s appeal of a decision by Prothonotary Tabib is now being heard by the Federal Court of Appeal in this case. Prothonotary Tabib had allowed the Minister to file a confidential affidavit of documents at the centre of that other dispute.
[26] However, this second application has no bearing on this case.
C. Relevant provisions
[27] The PSLRA is the main act at the centre of this dispute. This act sets out the regime for labour‑management relations in the federal public service and sets out a system for resolving disputes related to the employment conditions of federal public servants, including a grievance procedure. The relevant provisions of the PSLRA are found in sections 208, 209, 214 and 236 of the Act, which deal with individual grievances and the process for addressing them. For the sake of conciseness, these sections are reproduced in full in Appendix I to these reasons. They set out the PSLRA’s specific regime for addressing grievances and define the scope of public service employees’ rights to file an individual grievance on any decision or action by the employer relating to their “conditions of employment.” Ms. Nosistel’s three Grievances were filed under section 208 of the PSLRA.
[28] The provisions of the PSLRA must be read in conjunction with article 17 of the Agreement on the grievance process, which concerns federal government financial officers like Ms. Nosistel. Once again, the relevant provisions of article 17 are reproduced in Appendix I.
D. Standard of review
[29] Given the AGC’s admission that CSC failed to make the necessary decisions on Ms. Nosistel’s Grievances and that the application for judicial review should therefore be allowed, at least in part, for that reason, the question of the applicable standard of review is not really an issue in this case.
[30] Suffice it to say that, when an application for judicial review raises questions of procedural fairness, the lawfulness of the decision at issue must be reviewed for correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). Where the correctness standard applies, no deference is required, and the Court must conduct its own analysis and substitute its decision for that of the administrative decision‑maker’s if they disagree (Dunsmuir v New Brunswick, 2008 SCC 9 at para 50). The question then is to determine whether the process the decision‑maker followed was fair; the Court must establish whether the process at issue achieved the level of fairness required in the context of the rights affected (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115). In other words, the question raised by the duty of procedural fairness is not to determine whether the decision was “correct” but rather to determine whether the process the decision‑maker used presented the required level of fairness (Kazzi v Canada (Citizenship and Immigration), 2017 FC 153 at para 21; Varadi v Canada (Attorney General), 2017 FC 155 at para 26; Aleaf v Canada (Citizenship and Immigration), 2015 FC 445 at para 21).
III. Analysis
A. The subject of Ms. Nosistel’s application
[31] The first issue in dispute raised by Ms. Nosistel’s application for judicial review is the subject of her application and the administrative decision for which she is seeking the Court’s intervention.
(1) Ms. Nosistel’s claims
[32] In her notice of application in August 2016, Ms. Nosistel explicitly referred to the July 2016 Decision of the Commissioner not to proceed with the Grievances she had filed and said that her application concerned that decision. However, in the first paragraph of her June 2017 memorandum, Ms. Nosistel told the Court that her application was to contest [translation] “the process of addressing the psychological harassment complaint, the investigation process, the decision resulting from the final report and the damages she suffered as a result.” At the Court hearing, Ms. Nosistel reiterated that, in her opinion, her application concerned the violations of procedural fairness that occurred throughout the process of investigating her harassment complaints and in the resulting decisions.
[33] In his order dated January 2017, and solely upon reading Ms. Nosistel’s notice of application, Roy J. already noted that the application was immersed in confusion (Nosistel, at paras 22, 24). I must note that with her written and verbal submissions, far from clarifying her application as Roy J. had invited her to do, Ms. Nosistel further muddled the details on the subject of her application.
[34] For the reasons that follow, I am of the opinion that Ms. Nosistel was wrong to claim that her application concerns the process of addressing her harassment complaints or CSC’s September 2015 decision to accept the conclusions of the Investigation Reports. As the AGC correctly pointed out, Ms. Nosistel is confusing the process of addressing her complaints with the process of addressing her Grievances. Only the process of addressing her Grievances and CSC’s failure to make decisions on them are at issue in this case.
(2) Roy J.’s conclusion
[35] If there was any doubt about this, Roy J. completely removed it in his January 2017 order. As Roy J. stated numerous times, Ms. Nosistel’s application for judicial review concerns the Decision the Commissioner made in July 2016 and CSC’s failure to address her Grievances. Furthermore, as previously mentioned, Roy J.’s order clearly specifies, no less than three times, that CSC’s September 2015 decision finding that the harassment complaints were unfounded was not the subject of this judicial review (Nosistel at paras 16, 18, 25). Roy J.’s order therefore irrefutably establishes that Ms. Nosistel’s application for judicial review does not concern the September 2015 decision, the events that led to her harassment complaints and the Investigation Reports or the process followed during the investigation.
[36] If Ms. Nosistel disagreed with that finding or believed that Roy J. had erred in concluding as he did, the appropriate action would have been to appeal his order. She did not do so, and the question of the subject of Ms. Nosistel’s application is now res judicata. There is no need to return to it.
[37] I admit that it is astonishing to see, in her written submissions and at the Court hearing, Ms. Nosistel rely as she did on excerpts from Roy J.’s order that she considers favourable to her cause, while choosing to disregard just as directly and nonchalantly the finding made on the scope of her application, which Roy J. felt it appropriate and necessary to repeat three times in his order. With all due respect to Ms. Nosistel, a Court order is not an à la carte menu where a person may choose what suits their appetite at the time and close it, ignoring what they do not like.
(3) The prescription and the absence of an application for extension
[38] In any event, if the subject of Ms. Nosistel’s application for judicial review and the decision underlying it really should have been the investigation process for her harassment complaints or CSC’s decision in September 2015 confirming their rejection, that would not be of any great help to Ms. Nosistel, since her application for judicial review would then be barred under the FCA. Ms. Nosistel had been aware of the investigation process for her complaints and of CSC’s September 2015 decision since October 2015 (or, at least, from the time of her grievance of November 18, 2015), that is, more than 10 months before she filed her application for judicial review in August 2016. Subsection 18.1(2) of the FCA is clear: an application for judicial review must be made within 30 days after the time the decision was first communicated.
[39] I would add that Ms. Nosistel did not make any request to extend the time with regard to CSC’s September 2015 decision and the investigation process that led to that decision. I cannot help but observe that this is all the more decisive in this case because Ms. Nosistel was very familiar with this procedural mechanism. In fact, as part of the dismissal motion before Roy J. in January 2017, Ms. Nosistel had made a point of filing such an application to extend the time in case it was the Assistant Commissioner’s decision on January 28, 2016, on her second grievance that should have been the focus of the judicial review (Nosistel at para 20). Conversely, no formal application to extend the time or intent to file such an application appears on the record with regard to CSC’s September 2015 decision or the process of investigating Ms. Nosistel’s complaints.
[40] For these reasons, there is no doubt in my mind that the subject of Ms. Nosistel’s application for judicial review can only be CSC’s decisions on her Grievances. Therefore, the Court does not have to rule at this stage on Ms. Nosistel’s numerous criticisms of CSC’s September 2015 decision accepting the conclusions of the Investigation Reports or the process of investigating her harassment complaints. I am not suggesting that Ms. Nosistel’s persistent arguments about violations of procedural fairness and impartiality that could have marred the investigation process or CSC’s decision could not turn out to be valid. However, that is not for the Court to decide at this stage, and Ms. Nosistel is taking the wrong approach in trying to argue these points in the application for judicial review she filed in this case.
(4) The Renaud decision
[41] At the Court hearing, Ms. Nosistel spoke at length about the decision of Justice Gagné in Renaud v Canada (Attorney General), 2013 FC 18 [Renaud] to support her position that the Court can and should rule on violations of the principles of procedural fairness and natural justice she is citing. I do not agree with Ms. Nosistel’s reading of that decision and, in my view, this decision does not really serve her point. In Renaud, like in Ms. Nosistel’s situation, an applicant representing herself (Ms. Renaud) alleged a series of violations of procedural fairness in the procedure a federal office used to address her harassment complaints (Renaud at paras 67, 80). However, the application for judicial review that Gagné J. received concerned a decision to reject Ms. Renaud’s grievances at the final level of the grievance process. Therefore, it is clear that, in that case, the internal grievance process adopted under section 208 of the PSLRA had been effectively followed, that a decision had been made by the administrative decision‑maker at the final level, and that the Court had not received an application for judicial review until the end of the grievance procedure set out in the PSLRA. The decision Gagné J. reviewed was not the procedure used to address Ms. Renaud’s harassment complaints or the alleged violations of procedural fairness, but rather the administrative decision‑maker’s decision to reject her grievances (Renaud at para 71).
[42] Moreover, Gagné J. explicitly stated that the respondent’s argument was “correct” that the Court should “limit this judicial review to the decisions rendered by the administrative decision‑maker at the final grievance level” and that the conclusions in the investigation reports should not be “attacked directly by application for judicial review” since the grievance procedure was open to Ms. Renaud (Renaud at paras 68–69).
[43] I note that, in her application for judicial review, Ms. Renaud argued “that the principles of procedural fairness were breached at various stages in the investigation and handling of her grievances” (Renaud at para 2). To determine whether it was appropriate to allow the application for judicial review, Gagné J. considered it wise to take a closer look at the procedure followed, including the conduct of the investigation that led to the rejection of Ms. Renaud’s complaints, since the administrative decision‑maker in that case relied essentially on the procedure and conclusions of the investigation reports to make its decision on the grievances (Renaud at para 71). Nevertheless, Gagné J. unequivocally stipulated that her decision in the judicial review was based on an analysis of the decision on the grievances [emphasis added]. Moreover, she added that an application for judicial review attacking decisions based on preliminary reports—which had not yet been subject to a final‑level decision as set out in the PSLRA—“was clearly premature” (Renaud at para 70).
[44] It is precisely that decision on the merit of Ms. Nosistel’s Grievances that is missing in this case, and this absence strongly distinguishes the facts in Ms. Nosistel’s case from those in Renaud. As the AGC admits, CSC has made no decision on Ms. Nosistel’s three Grievances, which is sufficient to allow the application for judicial review and refer the case back to the administrative decision‑maker. The exercise of analyzing the circumstances of the complaints that Gagné J. conducted in Renaud to determine whether the judicial review sought should be allowed simply does not need to be performed here: the AGC acknowledges from the outset that the grievance process was violated, that the decisions that should have been made were not, that Ms. Nosistel’s evidence and arguments were not properly considered, and that the case should be referred back to CSC for it to decide on the merit of Ms. Nosistel’s Grievances.
B. The conditions for referral back to CSC and corrective measures
[45] The second issue raised in Ms. Nosistel’s application for judicial review is the nature of the corrective measures the Court should order in its judgment.
(1) The AGC’s consent
[46] The AGC acknowledges that none of Ms. Nosistel’s three Grievances were properly addressed in terms of the merit of her allegations pursuant to the grievance process set out in the PSLRA and the Agreement. The first grievance on February 10, 2015, apparently remained at the first level of the grievance process, and the AGC admits that no decision was made. Ms. Van Allen erred in law in her decision on the second grievance from November 18, 2015, because Ms. Nosistel was entitled to file a grievance on a situation that allegedly occurred in the course of her employment regardless of the subsequent termination of that employment (R v Lavoie, [1978] 1 FC 778 (FCA) at para 10; Price v Canada (Attorney General), 2016 FC 649 at paras 23–32). With regard to the third grievance dated March 3, 2016, the AGC also admits that no decision was made.
[47] Moreover, the AGC acknowledges that Ms. Nosistel was entitled to fair and equitable decisions being made on each of her three Grievances following an analysis based on the facts in her case that considers the arguments she wished to present. The AGC is of the opinion that the appropriate remedy to the application for judicial review in this case is to refer the case back to the administrative decision‑maker, that is, CSC, so that the three Grievances can be addressed according to the applicable grievance process.
[48] Ms. Nosistel argues that what the AGC is consenting to is still insufficient, and she is seeking more from the Court. She is pleading that the Court should rule itself on the objective of her Grievances and the investigation process surrounding her harassment complaints, determine the violations to procedural fairness that undermined the process, and set aside CSC’s September 2015 decision. She adds that she does not trust any process that may involve or originate from CSC, including the grievance process, and that the Court should intervene on the merits of the issues she is raising.
[49] I do not share Ms. Nosistel’s opinion. It is true that CSC failed to make a decision on Ms. Nosistel’s Grievances, and that is certainly an error justifying that the Court intervene and set aside CSC’s decision on how Ms. Nosistel’s Grievances were handled. However, it is not for the Court to determine their merit without first giving CSC the chance to make a decision.
(2) The judicial review and the exhaustion doctrine
[50] A judicial review concerns the lawfulness of an administrative decision, and not the appropriateness of the decision. It is not for a reviewing court to choose the solution that would be the most appropriate in the circumstances. That is particularly true when, as is the case here, the administrative decision‑maker has not yet even decided on the issues raised. The norm with respect to a judicial review is to refer the case back for reconsideration by the appropriate administrative decision‑maker, and not for the Court to rule on the merits of the case. The Federal Court of Appeal has frequently reiterated that it is not for a court of law to substitute its opinion for that of an administrative decision‑maker, but that its role is limited to reviewing the lawfulness of the decision (Canada (Citizenship and Immigration) v Yansane, 2017 FCA 48 [Yansane] at para 15; Gauthier v Canada (Attorney General), 2008 FCA 75 at para 48; Ouellette v Canada (Attorney General), 2012 FC 801 at para 34). This principle stems from the intent of courts of law to give administrative decision‑makers another chance to decide the merits of the matter, especially when the issues clearly fall within their field of expertise and specialization that Parliament conferred upon them (D’Errico at paras 15–17).
[51] In this case, the PSLRA sets out a detailed regime for resolving disputes related to the employment conditions of federal public service employees through a grievance process. Section 236 of the PSLRA prevents this Court from addressing the issues raised by Ms. Nosistel and that are the subject of her Grievances. When legislation sets out an administrative process consisting of a series of decisions and remedies, it must be followed to the end, barring exceptional circumstances, before the courts of law may be asked to intervene. The parties must exhaust all adequate remedial recourses when Parliament has given administrative decision‑makers the authority to make decisions rather than courts of law: “. . . absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted” (Canada (Border Services Agency) . CB Powell Limited, 2010 FCA 61 [CB Powell] at para 31). Therefore, Ms. Nosistel cannot bypass the grievance procedure set out in the PSLRA and the Agreement by making an application for judicial review (Vaughan v Canada, 2005 SCC 11 [Vaughan] at paras 30–40; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 52; Public Service Alliance of Canada v Canada (Treasury Board), 2001 FCT 568 at para 65, affd by 2002 FCA 239).
[52] This principle, known as the doctrine of exhaustion of administrative remedies, stipulates that courts should not interfere with ongoing administrative processes to address grievances (CB Powell at paras 30–31). This principle prohibiting interlocutory or premature judicial review was notably recognized with regard to the grievance procedure set out in the PSLRA. In Vaughan, the Supreme Court stated that “[e]fficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme” (Vaughan at para 37); instead, the courts should “defer to the PSSRA grievance procedure” (Vaughan at para 33).
[53] I recognize that the doctrine of exhaustion allows certain exceptions. However, the range of situations that allow for this general rule to be set aside are narrow since the threshold for exceptionality is high (CB Powell at para 33). Exceptional circumstances may emerge in very rare decisions where a court grants a writ of prohi