Chamberlain v. Canada (Attorney General)

Chamberlain v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-08-31
Neutral citation
2012 FC 1027
File numbers
T-56-11
Decision Content
Date: 20120831
Docket: T-56-11
Citation: 2012 FC 1027
Ottawa, Ontario, August 31, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
ZABIA CHAMBERLAIN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Zabia Chamberlain, is a long-serving member of the federal public service, employed in the Department of Human Resources and Skills Development [HRSDC]. In 2006, she was offered and accepted a temporary promotion to an acting assignment in an excluded EX-01 position. She claims that the workload in that position was excessive and that she was subjected to ongoing harassment by the supervisor to whom she reported in the acting assignment. Matters came to a head in April 2008, when the supervisor swore and shouted at Ms. Chamberlain. She alleges that he was also physically intimidating and on other occasions had made comments to her that she found to be sexually suggestive and inappropriate.
[2] In April 2008, Ms. Chamberlain made a complaint to the Assistant Deputy Minster [ADM] to whom her supervisor reported. Ms. Chamberlain fell ill shortly thereafter and has not worked since. The ADM investigated Ms. Chamberlain’s complaint and concluded that Ms. Chamberlain’s supervisor had violated the Treasury Board Harassment Policy. Ms. Chamberlain, however, was not satisfied with the investigation report and has been engaged in a lengthy debate about it with HRSDC. Indeed, the correspondence between Ms. Chamberlain, her co-workers and HRSDC spawned the record before the Court in this application, which consists of 14 bound volumes of documentation.
[3] Ms. Chamberlain’s acting assignment in the EX-01 position ended on its originally scheduled end-date of October 6, 2008, although she was absent due to illness at the time. HRSDC has offered to return Ms. Chamberlain to her substantive position of ES-07 in another branch of HRSDC, but Ms. Chamberlain claims that due to her medical condition she cannot work in the locations that have been made available. She also argues that she ought to continue to be paid at the EX-01 level and alleges that she was effectively blocked from competing for promised vacancies at the EX-01 level because her former supervisor, about whom she complained, ran the competitions for these positions.
[4] On December 3, 2008, Ms. Chamberlain filed a grievance in which she complained about several matters, including the treatment she had received from her supervisor, the investigation conducted by the ADM, the contents of the investigation report, her inability to compete for the posted EX-01 positions and loss of the EX-01 salary, HRSDC’s alleged disregard of its obligation to ensure her health and safety in accordance with Part II of the Canada Labour Code, RSC, 1985, c L-2) [the Code], the alleged failure of HRSDC to accommodate her and the discrimination she claims to have faced as a woman, a member of a visible minority group and a person with a disability. Ms. Chamberlain referred her grievance to adjudication under the Public Service Labour Relations Act, SC 2003, c 22, s 2 [PSLRA or the Act]. Ms. Chamberlain also filed four complaints with the Public Service Labour Relations Board [PSLRB or the Board], alleging that the employer violated its obligations to provide her with a safe work environment under the Code and engaged in reprisals contrary to the Code.
[5] In a decision dated December 13, 2010, Adjudicator Filliter of the PSLRB dismissed Ms. Chamberlain’s grievance on a preliminary basis, holding that it did not raise any adjudicable issue. In the same decision, Vice-Chairperson Filliter also ruled on the four Code-based complaints and held that only portions of them were adjudicable. In this application, Ms. Chamberlain seeks judicial review of the Adjudicator’s decision dismissing her grievance.
[6] Jurisdiction over judicial review of decisions of the PSLRB is divided between this Court and the Federal Court of Appeal. When Board members sit as grievance adjudicators, their decisions are reviewable by this Court. All other of their decisions are reviewable by the Federal Court of Appeal (see Beirnes v Canada (Treasury Board - Employment and Immigration Canada) (1993), 67 FTR 226, 4 WDCP (2d) 555 (TD)). I therefore can only consider the portions of Mr. Filliter’s decision which disposed of Ms. Chamberlain’s grievance. The portion of his decision ruling on the Code complaints is reviewable by Federal Court of Appeal, and, indeed, that Court has already received and decided such a review.
[7] In this regard, on February 8, 2012, the Federal Court of Appeal dismissed Ms. Chamberlain’s application for judicial review in respect of the portion of Vice Chairperson Filliter’s decision that dealt with the Code (Chamberlain v Canada (Attorney General), 2012 FCA 44 [Chamberlain]). Ms. Chamberlain sought leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada, which refused leave on August 9, 2012.
[8] Ms. Chamberlain’s present application for judicial review contains several arguments, some of which have been disposed of by the Federal Court of Appeal in Chamberlain. In particular, Ms. Chamberlain alleges that the Adjudicator violated the requirements of procedural fairness and was biased, arguments which also pertain to her Code-based claims and which were considered and dismissed by the Federal Court of Appeal in Chamberlain. As is discussed below, the principles of issue estoppel, or the rule that an issue that has already been determined between parties cannot be re-litigated, and stare decisis, or the rule that lower courts are bound by the rulings made by higher courts, require that I follow the decision of the Federal Court of Appeal on these points and results in the dismissal of Ms. Chamberlain’s arguments related to an alleged breach of procedural fairness and bias.
[9] In addition to these points, Ms. Chamberlain alleges that the Adjudicator made a number of other reviewable errors in dismissing her grievance. Although she articulates them in various ways, these errors can be summarised as basically falling into three categories. She first alleges that the Adjudicator erred in finding that the grievance is not related to a disciplinary action resulting in demotion or financial penalty within the meaning of paragraph 209(1)(b) of the PSLRA. Second, she attacks the Adjudicator’s dismissal of her grievance, arguing that she asserted human rights violations which the Adjudicator should have found to be adjudicable. Finally, she makes a number of allegations that are in essence a repetition of her claims concerning the errors she believes the Adjudicator made in ruling on her complaints under the Code, or, indeed, that relate to the merits of the Code-based claims that the PSLRB is still adjudicating.
[10] The final category of error is not appropriately raised in this application for judicial review as it is outside this Court’s jurisdiction. Moreover, it was already ruled upon in part by the Federal Court of Appeal and in other part is the subject of an ongoing proceeding before the PSLRB. Thus, only the first and second of the substantive areas in which Ms. Chamberlain alleges the Adjudicator erred are properly raised here.
[11] As is discussed below, the reasonableness standard of review applies to the Adjudicator’s determination that Ms. Chamberlain’s grievance is not related to a disciplinary action resulting in demotion or financial penalty under paragraph 209(1)(b) of the PSLRA. For the reasons set out below, I have concluded that the Adjudicator’s decision on this issue is reasonable and, accordingly, that this ground for review fails.
[12] As concerns the second ground raised by Ms. Chamberlain - related to her human rights claims - Ms. Chamberlain’s grievance raises a claim that the employer failed to accommodate her in breach of the Canadian Human Rights Act, RSC, 1985, c H-6 [CHRA] and also raises a claim that she has been discriminated against in violation of the CHRA. Although these claims are not clearly stated, Ms. Chamberlain does allege in her grievance that she was a victim of discrimination and that the employer failed to facilitate her return to work. She also mentions the CHRA. The Adjudicator did not consider the adjudicability of the alleged violations of the CHRA in his decision and thus, as is more fully discussed below, committed a reviewable error. It may well be that Ms. Chamberlain’s human rights claims are inadjudicable, but this matter was not addressed by the Adjudicator and should have been. I have accordingly determined that the Adjudicator’s order dismissing Ms. Chamberlain’s grievance must be set aside and the matter be remitted back to him (if he is available or to another PSLRB adjudicator if he is not) to determine whether or not Ms. Chamberlain’s claim of an alleged breach of the CHRA is adjudicable under the PSLRA. As the standard of review of an Adjudicator’s determination of arbitrability is reasonableness, it is for the Adjudicator – and not this Court – to make this determination.
[13] At the hearing of this matter, two evidentiary issues were raised. Ms. Chamberlain sought to file additional evidence, which I ruled was inadmissible. I set out my reasons for so doing below. Counsel for the respondent also made a motion to strike portions of the record before the Court, and I took this issue under reserve. For the reasons that follow, I am granting the respondent’s motion to strike in part.
Issues
[14] As is apparent from the foregoing, the issues that arise in this case are the following:
1. What record is appropriately before the Court in these matters;
2. What is the impact of the decision of the Federal Court of Appeal in Chamberlain on the bias and breach of procedural fairness claims made in this case;
3. What standard of review is applicable to the portions of the Adjudicator’s decision that are properly before this Court in this application;
4. Is the Adjudicator’s decision, determining that Ms. Chamberlain’s grievance does not allege a disciplinary action resulting in demotion or financial penalty, reasonable;
5. Should the Adjudicator have considered the human rights claims Ms. Chamberlain alleges were made in her grievance; and
6. What remedy is appropriate?
What material is appropriately before the court in these matters?
[15] At the hearing of this application, Ms. Chamberlain sought to file five additional affidavits: three from herself, dated September 6, 2011, October 7, 2011 and January 10, 2012; another signed by Julie Dupuis, dated January 6, 2012; and, finally, an affidavit from her mother, Salima Dean, dated January 6, 2012. By order dated February 14, 2012, Prothonotary Aronovitch ruled that none of these affidavits was admissible. Madam Aronovitch’s order was not appealed and therefore represents a final and binding determination on the admissibility of these five affidavits. For this reason, I ruled on May 16, 2012, during the second day of hearing in this matter, that none of the five affidavits could be filed and that they would not be considered by me in deciding this application.
[16] As noted, during the hearing, counsel for the respondent sought an order striking portions of the record that had been filed by Ms. Chamberlain. More specifically, counsel sought to strike all the affidavits or affirmative declarations contained at Tab 5 of the applicant’s record, with the exception of the affidavits of M. Rondeau, dated January 14, 2011 and of T. Dugas, dated January 27, 2011.[1] She also sought to strike Tabs A and B of Tab 6 of the applicant’s record (a series of questions posed to and answers given by Ms. Chamberlain's treating physician and psychologist) and all materials that post-dated the Adjudicator's decision.[2] The latter included numerous documents obtained by Ms. Chamberlain from HRSDC through requests she made under the Privacy Act, RSC , 1985, c P-21, and exhibits that have been filed before the PSLRB in the context of the ongoing hearings into the portions Ms. Chamberlain's Code-based complaints that Vice- Chairperson Filliter determined were adjudicable.
[17] The general rule, which has been qualified as “trite law”, is that an applicant on judicial review can only rely on evidence that was before the decision-maker (see e.g. Ochapowace Indian Band v Canada (Attorney General), 2007 FC 920 at para 9, 316 FTR 19 [Ochapowace Indian Band]; Slaeman v Canada (Attorney General), 2012 FC 641 at para 15). There are limited exceptions to this rule, namely when the evidence relates to a challenge to procedural fairness, the tribunal’s jurisdiction or is general background information of assistance to the court (Ochapowace Indian Band at para 9).
[18] The impugned documents at Tabs 5 and 6 of the Record are arguably related to Ms. Chamberlain’s procedural fairness claims as they contain evidence that the Adjudicator did not admit (which she asserts amounted to a breach of procedural fairness). Accordingly, I have determined that these documents will not be struck from the record. Even though the decision of the Federal Court of Appeal in Chamberlain results in the dismissal of these claims, the record was constituted before that decision was made and the procedural fairness and bias issues placed before me for determination. Accordingly, evidence related to them is properly part of the record (even though the claims themselves must be dismissed for the reasons set out below).
[19] The rest of the impugned documents, however, post-date the Adjudicator’s decision and thus were not before him and do not fall within one of the exceptions noted above. Given the date they were created, they cannot shed light on the hearing before the Adjudicator and do not concern his jurisdiction. The documents contained at Tabs 8, 9, 10, D and E1, and 11A, B, C, D, E and F of the applicant’s record are therefore not admissible in this application and will be struck from the record. I accordingly have not considered them in making this decision.
What is the impact of the Decision of the Federal Court of Appeal in Chamberlain on the bias and breach of procedural fairness claims made in this case?
[20] Turning to the procedural fairness and bias claims made by Ms. Chamberlain, as noted, the Federal Court of Appeal considered and dismissed essentially the same claims in Chamberlain. Indeed, Ms. Chamberlain’s written submissions to the two Courts on these points are very similar. In both proceedings, she alleged that she was not provided with the opportunity to present her case in full, that her evidence and cited jurisprudence were not sufficiently considered and that the Adjudicator did not issue summons to witnesses whom Ms. Chamberlain wished to call. The Court of Appeal found that, while Ms. Chamberlain may have disagreed with the outcome of the decision as well as the reasons, her right to procedural fairness had been respected, and there was no reasonable apprehension of bias.
[21] The respondent argues that Ms. Chamberlain is barred from bringing these issues before this Court due to the application of the doctrine of abuse of process, as outlined by the Supreme Court of Canada in Toronto (City) v CUPE, Local 79, 2003 SCC 63, [2003] 3 SCR 77 [City of Toronto]. I disagree. The doctrine of abuse of process is normally not applied when issue estoppel pertains. For the reasons set out below, I find that issue estoppel does pertain in this case. In addition, the doctrine of stare decisis prevents Ms. Chamberlain from re-litigating the bias and procedural fairness issues. Thus, while I agree with counsel for the respondent that these issues cannot be re-litigated, I differ as to the reason why this is so.
[22] The principle of issue estoppel, a branch of the broader doctrine of res judicata, exists to prevent collateral attacks of decisions. In order for issue estoppel to apply, three elements are required: first, the same parties (or their privies) must be involved in the two cases; second, a final decision must have been made in the earlier case; and third, the same question must have been decided in the earlier case (Danyluk v Ainsworth Technologies, 2001 SCC 44 at para 25, [2001] 2 SCR 460 [Danyluk]). Where these three elements are present, the issue cannot be re-litigated.
[23] There are important policy reasons behind the doctrine of issue estoppel. As the Supreme Court of Canada stated in BC Workers’ Compensation Board v Figliola, 2011 SCC 52 at para 34, [2011] 3 SCR 422 [BC Workers], the proper way to challenge a legal determination is through an appeal or review and not a collateral attack or a proceeding commenced in another forum. The Court summarized the applicable principles in the following way:
· It is in the interests of the public and the parties that the finality of a decision can be relied on.
· Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, re-litigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.
· The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.
· Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
· Avoiding unnecessary re-litigation avoids an unnecessary expenditure of resources.
[BC Workers at para 34, citations omitted.]
[24] All the elements necessary for the doctrine of issue estoppel are present in this case. First, the parties before me are identical to those before the Court of Appeal in Chamberlain. Second, with the Supreme Court of Canada having refused Ms. Chamberlain’s application for leave to appeal the decision of the Federal Court of Appeal, there is no doubt that the Federal Court of Appeal’s decision is final. Third, as indicated, Ms. Chamberlain’s application before the Court of Appeal raised identical issues to those here and thus the questions before the Court of Appeal were the same as those here. Therefore, the doctrine of issue estoppel must result in the dismissal of Ms. Chamberlain’s procedural fairness and bias arguments.
[25] There is an additional reason why these arguments must be rejected, namely, the principle of stare decisis or rule that requires adherence by a court below to the law as determined by superior courts that hear appeals from the court below. Justice Rothstein (then of the Federal Court of Appeal), explained in Canada (Commissioner of Competition) v Superior Propane Inc, 2003 FCA 53 at para 54, [2003] FCJ No 151: “The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher coordinate court. They cannot refuse to follow it” [citations omitted]. The Federal Court of Appeal hears appeals from this Court and decided precisely the same issue as is now before me regarding the alleged bias of the Adjudicator and the claim that he violated the principles of procedural fairness. Accordingly, the decision in Chamberlain is binding on me, and for this reason as well Ms. Chamberlain’s bias and procedural fairness claims must be dismissed.
What standard of review is applicable to the portions of the Adjudicator’s Decision that are before this Court in this application?
[26] The next issue that arises is the standard of review to be applied to the questions properly before this Court. It will be recalled that they involve the following two inquiries: first, whether the Adjudicator erred in determining that the grievance did not relate to a disciplinary action resulting in demotion or financial penalty within the meaning of paragraph 209(1)(b) of the PSLRA and, second, whether he erred in failing to consider Ms. Chamberlain’s human rights claims.
[27] To begin with the simpler question regarding the standard of review applicable to Ms. Chamberlain’s human rights claims, the Federal Court of Appeal recently dealt with a similar question in Turner v Canada (Attorney General), 2012 FCA 159, [2012] FCJ No 666 [Turner]. In Turner, the Court reviewed a decision of the Canadian Human Rights Tribunal where the applicant alleged the Tribunal had failed to consider a basis of discrimination raised in his complaint. The Court determined that no deference was owed to the Tribunal’s decision in this regard, it being for the reviewing Court to decide whether an inferior tribunal has failed to address an issue before it (at para 43). Thus, as concerns Ms. Chamberlain’s claim that the Adjudicator erred in dismissing her human rights claims, no deference is to be afforded to the Adjudicator’s decision, and it is for the Court to determine whether he failed to address an issue that was raised in her grievance.
[28] With respect to the standard applicable to the review of the Adjudicator’s determination that the grievance did not relate to a disciplinary action resulting in demotion or financial penalty, within the meaning of paragraph 209(1)(b) of the PSLRA, there is conflicting authority on this point.
[29] Ms. Chamberlain appears to argue for the correctness standard as she claims that the Adjudicator’s determination is erroneous. Counsel for the respondent, on the other hand, argues that the applicable standard of review is reasonableness, asserting that the case law has determined that this standard is applicable to review of the PSLRB’s interpretation of paragraph 209(1)(b) of the Act (citing in this regard Canada (Attorney General) v Amos, 2011 FCA 38, 330 DLR (4th) 603 [Amos] and Lindsay v Canada (Attorney General), 2010 FC 389, 369 FTR 64 [Lindsay]). Counsel argues in the alternative that application of the four factors from the “pragmatic and functional analysis”, which were re-affirmed in Dunsmuir v New Brunswick, 2008 SCC 9 at para 64, [2008] 1 SCR 190 [Dunsmuir], also results in the application of the reasonableness standard, given the presence of a strong privative clause in the PSLRA, the purpose of the PSLRB, which is tasked with providing expeditious settlement of workplace disputes, the nature of the question before the Adjudicator and, more generally, the expertise of PSLRB adjudicators in interpreting the scope of their jurisdiction under paragraph 209(1)(b) of the Act.
[30] To put the issue in context, it is useful to review the relevant statutory provisions. Sections 208 and 209 of the PSLRA define which matters may be the subject of a grievance and which matters may be referred to adjudication by federal public servants. Generally speaking, these sections provide employees in the federal public service with broad rights to grieve virtually any workplace-related issue but circumscribe the scope of matters which may be referred to adjudication before the PSLRB. These sections provide in relevant part:
Right of employee
208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Limitation
(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.
[…]
Limitation
(4) An employee may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.
[…]
Reference to adjudication
209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;
(c) in the case of an employee in the core public administration,
(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
[…]
Application of paragraph (1)(a)
(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.
Droit du fonctionnaire
208. (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application à son égard :
(i) soit de toute disposition d’une loi ou d’un règlement, ou de toute directive ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de toute disposition d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait portant atteinte à ses conditions d’emploi.
Réserve
(2) Le fonctionnaire ne peut présenter de grief individuel si un recours administratif de réparation lui est ouvert sous le régime d’une autre loi fédérale, à l’exception de la Loi canadienne sur les droits de la personne.
[…]
Réserve
(4) Le fonctionnaire ne peut présenter de grief individuel portant sur l’interprétation ou l’application à son égard de toute disposition d’une convention collective ou d’une décision arbitrale qu’à condition d’avoir obtenu l’approbation de l’agent négociateur de l’unité de négociation à laquelle s’applique la convention collective ou la décision arbitrale et d’être représenté par cet agent.
[…]
Renvoi d’un grief à l’arbitrage
209. (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur :
a) soit l’interprétation ou l’application, à son égard, de toute disposition d’une convention collective ou d’une décision arbitrale;
b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire;
c) soit, s’il est un fonctionnaire de l’administration publique centrale :
(i) la rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre que l’insuffisance du rendement, un manquement à la discipline ou une inconduite,
[…]
Application de l’alinéa (1)a)
(2) Pour que le fonctionnaire puisse renvoyer à l’arbitrage un grief individuel du type visé à l’alinéa (1)a), il faut que son agent négociateur accepte de le représenter dans la procédure d’arbitrage.
Somewhat similar provisions were contained in the predecessor legislation, the Public Service Staff Relations Act, RSC 1985, c P-35:
Right of employee
91. (1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
Limitation
(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.
[…]
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
Approval of bargaining agent
(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.
[…]
Droit du fonctionnaire
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d’une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application à son égard :
(i) soit d’une disposition législative, d’un règlement -- administratif ou autre --, d’une instruction ou d’un autre acte pris par l’employeur concernant les conditions d’emploi,
(ii) soit d’une disposition d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d’emploi.
Restrictions
(2) Le fonctionnaire n’est pas admis à présenter de grief portant sur une mesure prise en vertu d’une directive, d’une instruction ou d’un règlement conforme à l’article 113. Par ailleurs, il ne peut déposer de grief touchant à l’interprétation ou à l’application à son égard d’une disposition d’une convention collective ou d’une décision arbitrale qu’à condition d’avoir obtenu l’approbation de l’agent négociateur de l’unité de négociation à laquelle s’applique la convention collective ou la décision arbitrale et d’être représenté par cet agent.
[...]
92. (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l’arbitrage tout grief portant sur: a) l’interprétation ou l’application, à son endroit, d’une disposition d’une convention collective ou d’une décision arbitrale;
b) dans le cas d’un fonctionnaire d’un ministère ou secteur de l’administration publique fédérale spécifié à la partie I de l’annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
Approbation de l’agent négociateur
(2) Pour pouvoir renvoyer à l’arbitrage un grief du type visé à l’alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l’approbation de son agent négociateur et son acceptation de le représenter dans la procédure d’arbitrage.
[...]
[31] These sections have been the subject of considerable litigation, on a variety of issues, including the scope of review to be applied by this Court to decisions of the PSLRB (or its predecessor, the Public Service Staff Relations Board [PSSRB]). Much of the older case law (decided before the decision of the Supreme Court of Canada in Dunsmuir) held that the applicable standard of review to be applied to decisions of the PSSRB regarding its jurisdiction was correctness (see e.g. Marin v Canada (Treasury Board), 2007 FC 1250, 320 FTR 119; Chadwick v Canada (Attorney General), 2004 FC 503, [2004] FCJ No 605; Canada (Attorney General) v Marinos, [2000] 4 FC 98, 186 DLR (4th) 517). These cases reasoned that the statute circumscribes the Board’s jurisdiction in setting out what matters are adjudicable and, accordingly, that what is now section 209 of the PSLRA is a jurisdictional provision, necessitating review on the correctness standard.
[32] More recent cases from this Court, however, apply the reasonableness standard (see e.g. Lindsay at paras 36-38 and Kagimbi v Canada (Attorney General), 2011 FC 527 at para 15), drawing inspiration from Dunsmuir and subsequent cases on the standard of review from the Supreme Court of Canada, which militate in favour of a more deferential standard of review. In addition, several recent cases from the Federal Court of Appeal, concerning other sorts of determinations made by the PSLRB under other sections of the PSLRA, have also held that a reasonableness standard of review is applicable (see e.g. Amos at para 33, cited above at para 29­; Public Service Alliance of Canada v Canadian Federal Pilots Association, 2009 FCA 223 at para 50, [2010] 3 FCR 219 [Federal Pilots Association]; and Attorney General of Canada v Public Service Alliance of Canada, 2011 FCA 257 at paras 27-35, 343 DLR (4th) 156 [AG v PSAC]).
[33] The matter of the standard of review applicable to the determination at issue in this case has not been definitively settled by the Federal Court of Appeal. Contrary to what that counsel for the respondent asserts, the Amos decision did not deal with the standard of review to be applied to the Board’s determination of arbitrability under paragraph 209(1)(b) of the PSLRA. Rather, the Amos case concerned the jurisdiction of the PSLRB to enforce settlements and the standard of review applicable to the Board’s determination that it possessed jurisdiction to do so.
[34] In the relatively recent decision in Rhéaume v Canada (Attorney General), 2010 FCA 355, 415 NR 47, the Court of Appeal noted the division in the case law on the standard of review applicable in cases like the present and declined to pronounce on what standard is applicable to determinations of the Board under paragraph 92(1)(b) of the PSSRA (the precursor to paragraph 209(1)(b) of the PSLRA) because the Board decision at issue in that case was both reasonable and correct. Justice Trudel, writing for the Court, noted that the Court of Appeal would “consider [the] issue [of the applicable standard of review] another time” (at para 9).
[35] In light of this division in the case law, it is necessary to analyse the PSLRA and the nature of the issue before the Adjudicator to determine the appropriate standard of review. The requisite analysis is a contextual one and involves consideration of a number of factors, including: (1) the presence or absence of a privative clause and the wording of any such clause; (2) the purpose of the PSLRB; (3) the nature of the question at issue, and; (4) the expertise of the PSLRB (paraphrasing Dunsmuir at para 64).
[36] As counsel for the respondent correctly notes, the PSLRA (unlike the PSSRA) contains a strong privative clause. In this regard, section 233 of the PSLRA provides as follows:
Decisions not to be reviewed by court
233. (1) Every decision of an adjudicator is final and may not be questioned or reviewed in any court.
No review by certiorari, etc.
(2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any of the adjudicator’s proceedings under this Part.
Caractère définitif des décisions
233. (1) La décision de l’arbitre de grief est définitive et ne peut être ni contestée ni révisée par voie judiciaire.
Interdiction de recours extraordinaires
(2) Il n’est admis aucun recours ni aucune décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action de l’arbitre de grief exercée dans le cadre de la présente partie.
[37] The Federal Court of Appeal has held that this strongly-worded privative clause is an important factor leading to the conclusion that the reasonableness standard of review is applicable to other sorts of decisions made by the PSLRB. For example, in Federal Pilots Association (cited above at para 32), the Court was required to determine what standard of review is applicable to the PSLRB’s determination of the scope of a bargaining unit. Justice Evans, writing for the majority of the Court, noted that section 233 is a “strong preclusive clause” and considered this factor an important one in determining that the standard of review applicable in that case was reasonableness (at paras 18 and 55). Likewise, in AG v PSAC (at para 35, cited above at para 32), the Court of Appeal relied in on the privative clause contained in section 51 of the PSLRA in determining that the reasonableness standard of review is applicable to a decision of the PSLRB setting essential service levels that must be maintained in the event of a strike or lockout. In Amos (cited above at para 29), the content of the privative clause was an important factor in the determination that the reasonableness standard of review is applicable to the Board's decision that it possessed jurisdiction to enforce grievance settlements (see para 29).
[38] Section 233 of the PSLRA is similar to the privative clause found in Part I of the Code, which sets out the provisions relating to labour relations in the federal private sector and establishes and provides authority to the Canada Industrial Relations Board [CIRB]. The case law firmly establishes that the reasonableness standard of review applies to decisions of the CIRB, in part due to the strongly-worded privative clause found in section 22 of the Code (see e.g. Syndicat des débardeurs du Port de Québec (CUPE, Local 2614) v Société des Arrimeurs de Québec Inc, 2011 FCA 17, 419 NR 225 at para 37; JD Irving Ltd v General Longshore Workers, Checkers and Shipliners of the Port of Saint Jo