Bergey v. Canada (Attorney General)

Bergey v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-05-12
Neutral citation
2015 FC 617
File numbers
T-1392-13
Decision Content
Date: 20150512
Docket: T-1392-13
Citation: 2015 FC 617
Toronto, Ontario, May 12, 2015
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
VALERIE BERGEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is a judicial review of a decision of an adjudicator appointed under the provisions of the Public Service Labour Relations Act, S.C. 2003, c. 22 (PSLRA) dated July 19, 2013 wherein the adjudication of the disposition of certain grievances filed by the Applicant (grievor) against her employer, the Royal Canadian Mounted Police (RCMP), were dismissed, and the file respecting two others was closed for lack of jurisdiction. The Applicant seeks to have this decision quashed and referred back to another adjudicator for a new determination together with such other relief as this Court may deem fit.
[2] According to the adjudicator’s decision, the Applicant was first employed as a public servant with the Federal Government in 1993 at which time she worked in the Department of National Defence in British Columbia. She was transferred in 1996 to Prince George, B.C., to work with the Traffic Unit of the RCMP there. Early in 2001, she was relocated to another building in Prince George to work with the highway patrol section of the RCMP. She was a civilian RCMP member and employed by the Treasury Board and, as such, her employment came under the purview of a Collective Agreement between the Treasury Board and the Public Service Alliance of Canada (PSAC) for the Program and Administrative Services Group, with an expiry date of June 20, 2007. The Applicant challenges the precise nomenclature with respect to the positions that she held; however that precision is not in the record nor is it material to this judicial review.
[3] As of October 2001, the Applicant’s job description included compiling, reviewing and maintaining files and record systems; checking, scoring and concluding files on the Computer Integrated Information Dispatch System; downloading files to the Central Police Information Centre system (CPIC); and making required additions and modifications and concluding files on the CPIC. Witnesses described the CPIC as the RCMP’s “Holy Grail” and stressed that accuracy and timeliness of entries were crucial: “Arrests and releases were based on the information in the Central Police Information Centre system” (Bergey v Treasury Board (Royal Canadian Mounted Police), 2013 PSLRB 80 at para 167 (Bergey)). The Applicant testified “that it was very important to make accurate entries in the Central Police Information Centre system” (Bergey, supra, at para 168).
[4] The Applicant held several positions with the Union of Solicitor General Employees (USGE), the latter a component of PSAC, and served as a local president from about May 1999 until her resignation from that role on December 13, 2003.
[5] As a condition of her continued employment, the Applicant was required to maintain an RCMP reliability status, the minimum security clearance. This status was renewed annually and updated every five years; further reviews could be conducted at any time. A reliability status could be withdrawn or reinstated as the case may be.
[6] On November 4, 2004, the Applicant was served with a letter suspending her for ten days. Following that, the Applicant was instructed to undergo a fitness-to-work medical examination which was conducted in December 2004. The Applicant never returned to the workplace after November 2004. Her reliability status was revoked in July 27, 2005, the effect of which was that she would be unable to secure employment in many areas of the RCMP or the public service. The Applicant’s employment with the RCMP was terminated for cause on January 3, 2006 due to the loss of her reliability status.
[7] The adjudicator, at paragraph 5 of her decision, listed a number of decisions made by the Applicant’s employer during the 2004 – 2006 period which were at issue:
• A 10-day suspension without pay imposed on the grievor (Applicant) on November 4, 2004 by Superintendent M.J. (Mike) Morris;
• The suspension of the grievor’s RCMP enhanced reliability status (the RCMP reliability status), imposed by Chief Superintendent Robert Lanthier on March 22, 2005, pending a further security review to determine if her RCMP reliability status should remain valid or would be revoked for cause;
• An indefinite continuation of the grievor’s employment suspension without pay, imposed by C/Supt. Barry Clark effective March 22, 2005, pending:
• The revocation of the grievor’s RCMP reliability status effective July 22, 2005 by letter from C/Supt. Lanthier;
• A continuation of the indefinite suspension imposed on August 4, 2005 by C/Supt. Clark until a decision on the grievor’s employment with the RCMP could be made, because her RCMP reliability status had been revoked;
• The termination of the grievor’s employment for cause on January 3, 2006 by letter from RCMP Commissioner Giuliano Zaccardelli due to the loss of her RCMP reliability status.
[8] I provide the following Index, by paragraph number, to these Reasons:
TOPIC
PARAGRAPH NUMBER
THE GRIEVANCES
9
THE EVIDENCE BEFORE THE ADJUDICATOR
14
HEARING AND WITNESSES
16
THE ISSUES
19
THE APPLICANT’S MEMORANDUM
22
STANDARD OF REVIEW
27
➢ REASONABLENESS
28
➢ TEST FOR BIAS
41
ALLEGATIONS OF BIAS
46
UNION EXPRESSION
52
THE DISCIPLINARY ISSUE
57
THE JURISDICTIONAL ISSUE
68
APPLICANT FAILED TO DISCHARGE HER BURDEN
78
DISMISSAL OF OTHER GRIEVANCES FOLLOWED LOGICALLY
83
FINDINGS OF FACT
84
ATTEMPTED RE-TRIAL
90
CONCLUSIONS AND COSTS
93
I. THE GRIEVANCES [9] The Applicant filed several grievances with the Public Service Labour Relations Board, eight of which were ultimately referred to the adjudicator. All of the grievances had been denied in the course of the employer’s grievance process. This determination was set out in a letter from the RCMP Commissioner dated December 8, 2005.
[10] One of the eight grievances was withdrawn at the hearing before the adjudicator. The seven remaining grievances were set out at paragraph 9 of the adjudicator’s decision as follows:
a) The first grievance (PSLRB File No. 166-02-37094; Exhibit 110) challenges the employer’s decision of November 4, 2004 to impose a 10-day suspension without pay on the grievor. The grievance was dated December 12, 2004 but was not referred to the Board until February 28, 2006. In it, the grievor alleges that the discipline is unjust and unwarranted. The grievance was filed using Board Form 14 under the PSSRA. She requests, among other things, written apologies for the suspension and for a false accusation of a security breach; the rescinding of the suspension letter and her reinstatement with reimbursement of all pay and benefits lost; financial compensation for pain and suffering, stress and anxiety, humiliation, defamation, and slander; a compassionate transfer to a mutually acceptable location; a guarantee from the employer of job security for the next 20 years regardless of any reorganization in the RCMP; and the permanent removal from the workplace of her immediate supervisor, Staff Sergeant (S/Sgt.) Dave Beach, and North District Office Superintendent Morris.
b) The second grievance (PSLRB File No. 566-02-1298; Exhibit 138; it replaced PSLRB File No. 166-02-37093) disputes the employer’s decision of March 22, 2005 to suspend the grievor’s RCMP reliability status pending a further security review. In it, she claims that the decision was disguised disciplinary action. She also disputes the employer’s decision of March 24, 2005 to suspend her without pay indefinitely, effective March 22, 2005, because her RCMP reliability status was suspended, which meant that she no longer met a condition of her employment. The grievance was filed on April 15, 2005. In it, the grievor requests that the suspension letter be rescinded, that her RCMP reliability status be reinstated, and that she be reinstated into her position with the full reimbursement of pay and benefits. She also requests detailed general and exemplary damages for, among other things, negligence, breach of contract, pain and suffering, defamation, wilful and reckless behaviour, being subjected to someone acting in an insulting manner under disguised discipline, and the failure of a duty of care. She also requested interest on all damages.
c) The third grievance (PSLRB File No. 566-02-175; Exhibit 140) challenges the employer’s decision of July 27, 2005 to revoke the grievor’s RCMP reliability status. The decision was conveyed to her by letter from C/Supt. Lanthier following a security review. She alleges that the revocation decision was a disguised disciplinary sanction rendered without just cause and in bad faith. The grievance was dated September 27, 2005 and was filed on February 28, 2006. In it, she requests a long list of corrective action, which includes the reinstatement of her RCMP reliability status; her reinstatement to her position with retroactive pay and benefits; the removal of numerous documents from her personnel file; compensation in the millions of dollars for hurt feelings, pain and suffering, stress, embarrassment and humiliation, slander, defamation, and assassination of character; general damages in the millions, tax free, for the employer’s negligence, its wilful and reckless behaviour, and for acting in an insulting manner to her; and millions of dollars, tax free, for breach of contract.
d) The fourth grievance (PSLRB File No. 566-02-174; Exhibit 139) challenges the employer’s decision of August 4, 2005, conveyed to the grievor by letter of that date from C/Supt. Clark, that she no longer met the conditions of her employment and that she was unable to perform the duties of her position at the North District Office because her RCMP reliability status was revoked on July 2729?, 2005. She also challenges the employer’s decision to continue her suspension without pay until she was further advised of her employment status. The grievor alleges that the employer’s decisions were disguised discipline, rendered without cause and in bad faith. The grievance is dated September 27, 2005 but was not filed with the Board until February 28, 2006. In it, she lists detailed requested corrective action, including that her RRSRCMP reliability status be reinstated, that she be deemed as meeting a condition of employment, that she be reinstated to her position and that she receive financial relief similar to that requested for the third grievance.
e) The fifth and sixth grievances (PSLRB File Nos. 566-02-173 and 176) were introduced in an abbreviated form as Exhibit 209, but complete copies are in the Board’s file. The grievor signed both of them on September 27, 2005. They were filed with the Board on February 28, 2006. They are identically worded with respect to both the grievance description and the corrective action sought. They challenge the employer’s action of not allowing union representation or access to union representation on the serving of the RCMP reliability status revocation and accompanying letter and documentation on the grievor. No date is specified for the challenged employer’s action. I note on the evidence that the employer served a suspension of RCMP reliability status letter on the grievor on March 22, 2005 and an RCMP reliability status revocation letter on her on July 22, 2005. The grievor claimed that the employer’s decisions and actions were disguised discipline rendered without just cause and in bad faith and that they were not warranted. She detailed a lengthy list of corrective action and damages sought for the employer’s failure to allow union representation.
f) In her seventh grievance (PSLRB File No. 566-02-395; Exhibit 144), the grievor disputed the employer’s decision of January 3, 2006 to terminate her employment, conveyed by a letter from Commr. Zaccardelli, pursuant to paragraph 12(1)(e) of the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA). The grievor alleged that the termination was disguised discipline without just cause, that it was done in bad faith and that it was unwarranted. The grievance was filed January 24, 2006. She requested corrective action that included reinstating her RCMP reliability status, reinstating her to her position with all pay and benefits, and reimbursing her for sick leave and annual leave, and compensatory and other damages amounting to $50 million tax-free forever, additional damages for non-pecuniary losses, including 40 years’ salary, tax free, and tax-free interest on all damages.
[11] The parties did not dispute that the fifth and sixth grievances were duplicates, and thus they were considered together by the adjudicator.
[12] The hearing of these grievances was described by the adjudicator as long, arduous and complex, lasting 38 days spanning the period from September 2008 to September 2010. Written submissions were subsequently filed by the parties in September, October and November of 2010.
[13] On July 19, 2013, some two and a half years following the provision of written submissions by the parties, the adjudicator delivered her 247 page decision reviewing in great detail the evidence and issues and considering the jurisprudence. The decision ended with the following Order:
[1006] The grievance in PSLRB File No. 166-02-37094 is dismissed.
[1007] The objection to an adjudicator’s jurisdiction to hear the grievances in PSLRB File Nos. 566-02-174, 175 and 1298 is upheld and I order those files closed.
[1008] The grievances in PSLRB File Nos. 566-02-173 and 176 are dismissed.
[1009] The grievance in PSLRB File No. 566-02-395 is dismissed.
II. THE EVIDENCE BEFORE THE ADJUDICATOR [14] At the hearing before the adjudicator, the employer called 11 witnesses and submitted evidence of two other persons by affidavit, one of whom was cross-examined. The Applicant was the only witness to give evidence on her behalf. Hundreds of pages of documents were admitted into evidence.
[15] At the hearing, the Applicant was represented by Counsel. In the proceedings before this Court, the Applicant was self-represented.
III. HEARING AND WITNESSES [16] The adjudicator heard evidence from the following witnesses called on the employer’s behalf (Bergey, supra, at para 28):
a) S/Sgt. Beach was the non-commissioned officer in charge of the Fraser/Fort George Traffic Services Unit, located in the North District Office, from March 10, 2003 to March 17, 2005 and was the grievor’s direct supervisor. In March 2004, as a result of his complaint, an investigator was appointed to conduct a review to determine if she breached the RCMP’s security policy when she allegedly removed documents from office files. As her direct supervisor for part of the period under review, he provided performance assessments and workplace guidance and directions to her, some of which she challenged;
b) Supt. Morris: From 1998 until his retirement in December 2004 after almost 32 years of service, he was the Superintendent and District Officer of “E” Division’s North District, in charge of the northern part of B.C. His office was located in the North District Office building in Prince George. His responsibilities included more than 1000 employees, 35 detachments where staff were posted, and municipal, court and provincial contract detachments, as well as numerous First Nations communities. He imposed the 10-day disciplinary suspension on the grievor on November 4, 2004. On November 29, 2004, he wrote to “E” Division’s North District Departmental Security Section in Vancouver, requesting a security review of the grievor. While he was retired at the time of the hearing, he will be referred to as Supt. Morris;
c) C/Supt. Clark was Commander of “E” Division’s North District at the time of the hearing. He was appointed to the position in mid-January 2005 after Supt. Morris retired. C/Supt. Clark had been in “E” Division’s North District since June 1999. The operational units reporting to him as an inspector included the Traffic Services Unit in the North District Office in which the grievor worked. Between April 2004 and January 2005, he was an Inspector and the Assistant District Officer replacing Insp. Bob Wheadon, who had been responsible for the non-operational (personnel) side of operations. In October 2004, he, as the Assistant District Officer, requested an administrative review of an alleged departmental security complaint form that the grievor had filed against her direct supervisor, S/Sgt. Beach. In November 2004, he referred the results of an investigation of an alleged security breach by the grievor to the Pacific Region Departmental Security Section. As C/Supt., he sent the grievor the notices of indefinite suspension without pay effective March 22, 2005, after her RCMP reliability status was suspended, and on August 4, 2005, after her RCMP reliability status was revoked for cause. Mr. Clark will be referred to as Insp. Clark regarding the actions he took up to January 2005 when Supt. Morris was in charge of “E” Division’s North District and as C/Supt. Clark regarding his testimony at the hearing and the decisions he took, which included indefinitely suspending the grievor’s employment, after he became the Commander of “E” Division’s North District in January 2005;
d) Bonnie Bailey was a public-servant employee. She belonged to the same USGE as the grievor. She was “E” Division’s North District Administration Manager, located at the North District Office. As such, she was part of Supt. Morris’s management team. She was classified AS-04 in 2003. She reported to Supt. Morris. After he retired, she reported to C/Supt. Clark. She was also a co-presenter with the grievor in a workshop on training on sexual harassment awareness in the workplace. She successfully brought a harassment grievance against the grievor in December 2003. As a result, the grievor received a three-day suspension in September 2004. She was the subject of a harassment grievance filed by the grievor in February 2004. After an investigation, that grievance was held unfounded;
e) At the relevant time, Corporal Tom Adair was Harassment and Human Rights Coordinator and Advisor for “E” Division’s North District, based in Vancouver. He served in that position for approximately seven years before being promoted in 2009 to the position of Program Manager for the RCMP’s National Respectful Workplace Programs. Starting in October 2004, at the request of Supt. Morris, he initiated a number of actions to investigate the grievor’s allegation that harassment was rampant in “E” Division’s North District, and that Supt. Morris did not take workplace harassment seriously. He appointed a team of two investigators from outside the North District Office to review the grievor’s harassment allegations against two co-workers;
f) Debbie Stangrecki was a public servant with 30 years’ service with the RCMP. She worked with the grievor at one time in the Prince George Detachment Traffic Services Unit. She was the vice-President and chief shop steward of USGE in Prince George from approximately 2001 to 2003. The grievor was the president at that time, and the grievor filed a number of her own harassment complaints and grievances. Ms. Stangrecki became the president sometime after the grievor resigned in December 2003. The grievor later filed a harassment complaint against her.
g) Staff Sergeant (S/Sgt.) Walter Gordon Flewelling was a corporal in “E” Division’s North District Traffic Services Unit in 2004. He served the grievor with an amended 10-day suspension letter on November 8, 2004, and reported to Supt. Morris on his discussion with her at the November 8 meeting about an October 29, 2004 printer incident in the North District Office. He is referred to as Corporal Flewelling in this decision;
h) S/Sgt. Keith Hildebrand was the non-commissioned officer in charge of the Quesnel Detachment, which is under the North District Office’s jurisdiction. He retired in April 2008 after 26 years of service with the RCMP, which he spent primarily in positions in Vancouver and the Lower Mainland. He investigated an alleged security policy breach by the grievor after S/Sgt. Beach reported that she had removed documents from North District Office operational files. His report is dated October 13, 2004;
i) Sgt. D.E. Lennox was the non-commissioned officer in charge of “E” Division’s North District Border Integrity Program. He was with the RCMP until he retired in April 2005 after 34 years of service. His office was in the North District Office, but he did not report to Supt. Morris. In 2004, he conducted an administrative review of an alleged security breach that the grievor initiated against her direct supervisor, S/Sgt. Beach. His report is dated December 2, 2004.
j) In 2005, C/Supt. Lanthier was Director General, Departmental Security Branch, RCMP, and his office was in Ottawa. As the RCMP’s Departmental Security Officer, he had overall responsibility for departmental security for the four RCMP regions across Canada. He made the decisions first in March 2005 to suspend and later in July 2005, to revoke the grievor’s RCMP reliability status for cause. He retired in 2007. At the time of the hearing, he was Director, Canadian Nuclear Safety Commission, Nuclear Security Division;
k) R.A. (Bob) Briske was an RCMP member for over 37 years when he retired in 1999. After that, he did contract work for the RCMP. In 2005, he worked as a risk management analyst with the Pacific Region Departmental Security Section. His office was in Vancouver, and his role included reviewing files involving possible security breaches by any RCMP employee within the Pacific Region. It also included reviewing individuals’ suitability to be issued or to retain an RCMP reliability status. As the analyst responding to Supt. Morris’s memorandum of November 29, 2004 to the Pacific Region Departmental Security Section, he conducted the review and prepared the security report that was sent to the Departmental Security Officer in Ottawa, C/Supt. Lanthier, on February 12, 2005 recommending revoking the grievor’s RCMP reliability status.
l) Mr. C.A. (Art) O’Donnell was the manager of the Personnel Security Section for the Departmental Security Branch. He was based in Ottawa, and he reported to C/Supt. Lanthier. His managerial responsibilities included national security investigations involving alleged breaches of security and issuing RCMP reliability status and security clearances. He supervised the interaction between the four RCMP regional offices and the Departmental Security Branch in Ottawa. He had a supervisory and advisory role with the security review done by Rene Bourgeois, an analyst in the Personnel Security Section, in C/Supt. Lanthier’s office before C/Supt. Lanthier made the decision to revoke the grievor’s RCMP reliability status, which she challenged in her grievances.
[17] The adjudicator received affidavit evidence from Dana Bouchard, a public servant working for the RCMP at the Quesnel Detachment that received papers via fax from the Applicant.
[18] The Applicant gave evidence on her own behalf; she did not call any other witness.
IV. THE ISSUES [19] The Applicant has raised the following issues in her Memorandum:
i. Does the Adjudicator’s decision reflect a reviewable error?
ii. Standard of review is reasonableness. Was the adjudicator’s decision reasonable regarding the 10 day suspension, temporary revocation, revocation to terminating employment and other grievances?
iii. Is this decision reviewable with dividing questions of reviewable on a correctness standard or reviewable on a reasonableness standard?
iv. Did the adjudicator err in her factual findings with respect to real and substantial connections between the rcmp and myself?
v. Did the adjudicator err in law and/or in facts on the face of the record?
vi. Did the adjudicator err in law and/or facts neglecting to apply the test of bad faith and/or disguised discipline correctly in this decision?
vii. Did the adjudicator err in law and ignore the evidence in a capricious and perverse manner?
viii. Did the adjudicator fail to consider evidence that she should have, and/or consider evidence which she should not have?
ix. Was there a misapprehension of critical evidence because of a standard of unfairness or bias on the part of the adjudicator?
x. Did the adjudicator apply the correct test of standard of fairness and proper standard of review?
xi. Was this a rational or irrational determination?
xii. Did the adjudicator improperly do her duty or fail to do her job, to deal with this complaint or refuse to exercise her jurisdiction with this complaint?
xiii. Did the adjudicator apply the correct test for determining her powers and/or jurisdiction over the grievances?
xiv. Did the adjudicator have jurisdiction of decision of revocation and termination?
[20] The Respondent has crystallized these issues to a few in its Memorandum:
19. What is the standard of review?
20. Was the adjudicator’s decision reasonable?
21. There is an additional issue raised by the Appendix attached to the Applicant’s factum, namely, whether it should be struck and/or disregarded.
[21] I will first deal with issue of the Appendix to the Applicant’s Memorandum.
V. THE APPLICANT’S MEMORANDUM [22] The Applicant’s Memorandum filed with this Court comprised of a main body of 34 pages attached to which was an Appendix 24 pages long. The Respondent takes no issue with respect to the main body which exceeds the 30 page limit set by Rule 70(4) of the Federal Courts Rules, SOR/98-106 by four pages. The Respondent takes issue with respect to the Appendix.
[23] In the course of filing documents prior to the hearing in this Court, the Applicant sought to file a lengthy affidavit sworn by herself in which she took issue with many of the factual findings, or alleged omissions, by the adjudicator. Prothonotary Tabib, in her Order dated July 29, 2014, disallowed the filing of this affidavit. No appeal was later taken from that Order.
[24] The Appendix to the Applicant’s Memorandum which is, as admitted by the Applicant at the hearing before me, essentially a re-casting of the affidavit that was disallowed by Prothonotary Tabib’s Order. The Appendix includes, in bullet form, challenges to the findings and alleged omissions in the adjudicator’s decision.
[25] This situation is similar to that dealt with by Létourneau JA in Remo Imports Ltd. v Jaguar Cars Ltd., 2006 FCA 416, 358 NR 149, where the Court of Appeal made an Order that certain portions of Memoranda be struck and shorter Memoranda be filed. This Order was essentially ignored by the parties who attempted to file supplementary material. The Court ordered that this material be struck from the record. Létourneau JA wrote at paragraphs 1 to 12:
1 He who plays with fire ends up burning himself. In this case, both parties have been playing with fire and shall live with the consequences of it.
2 The appellant and the respondents have been engaged in a war as to the contents of their respective Memorandum of Fact and Law (memorandum). The war has been conducted at the expenses of the Court and scarce judicial resources. Both parties have failed to live up to the letter and spirit of the Federal Courts Rules.
3 The whole saga started with an Order of Sexton J.A. dismissing the appellant's request to file a memorandum in excess of 30 pages. The Order was issued on August 9, 2006.
4 On September 5, 2006, Décary J.A. noted that the appellant, in adding "end notes" to its memorandum, was attempting to circumvent the Order of Sexton J.A. He ordered that the memorandum be refused for filing and be sent back to the appellant.
5 On November 9, 2006, Noël J.A. observed in an Order that he issued that "both the appellant and the respondent, by incorporating into their memoranda substantial arguments found elsewhere in the record, are circumventing the prior order of this Court limiting the length of their memorandum to 30 pages". He went on to add:
This is the second time that compliance with that order is referred to the Court for adjudication.
6 Noël J.A.'s Order directed the parties to act as follows:
The Registry is directed to send the Memoranda back to the parties. The appellant is given a period of fifteen days to re-file its Memorandum without incorporating by reference the 49 pages Amended Notice of Appeal.
The respondents will re-file their Memorandum within ten days from the date of service of the appellant's Memorandum without the inclusion in Appendix C of excerpts from their Trial Memorandum and without the incorporation of Appendix D.
The material which the parties wish to incorporate into their memorandum is part of the record and can be referred to in the course of the hearing. However, the purpose of the memorandum is to set out a concise statement of the facts and the submissions (Rule 70).
The parties are asked to abide by the letter and the spirit of the prior order of this Court and address the issues on appeal within the 30 page limit.
7 The respondents have, on December 4, 2006, served and filed a Supplemental Appeal Book that basically contains their memorandum at trial. The appellant who still does not have clean hands, as we shall see, objects to such filing.
8 After reviewing the parties' arguments and this Court's previous Orders, I am satisfied that the respondents are attempting to achieve something that was not authorized by the Orders of Noël J.A., Nadon J.A., Sexton J.A. and Décary J.A. Therefore, the respondents' Supplemental Appeal Book will be struck from the record and sent back to them.
9 In addition, Appendix C to the respondents' memorandum will be deleted. If the respondents feel that the references found therein will be useful to the Court, they can incorporate them into their memorandum with the exclusion of any reference to their Supplemental Appeal Book and the material contained therein.
10 This brings me to the two memoranda submitted by the appellant and the respondents. Both memoranda are defective and in violation of Rules 65 and 70 of the Federal Courts Rules. Systematically, the pages contain more than 30 lines. The top and bottom margins are not respected. In the end, the memoranda contain more than 30 pages and are in violation of Sexton J.A.' Order: see Merchant v. Her Majesty the Queen, [2001] F.C.J. No. 314, 2001 FCA 19, at paragraphs 10 and 11.
11 So far, both parties have been abusing the process of the Court with impunity. The buck stops here.
12 The memoranda of both the appellant and the respondents will be struck from the record and returned to them. They both shall serve and file a new memorandum by January 17, 2007 that strictly complies with Rules 65 and 70 of the Federal Courts Rules. Failure by any party to abide by this Court's Order will lead to sanctions ranging from a deemed waiver by the defaulting party of its right to file a memorandum, dismissal of the proceeding without further notice and the imposition of costs to counsel of record, to the issuance of a show cause order as to why the defaulting counsel of record should not be found guilty of contempt.
[26] I view the Applicant’s Appendix in the same way. It is an attempt to circumvent the Order of Prothonotary Tabib. The Applicant conceded at the hearing before me that, given the Respondent’s objection, the Appendix could be struck from the record. I order that Appendix be struck from the record.
VI. STANDARD OF REVIEW [27] The reasonableness standard of review applies to the adjudicator’s decision on the merits of the grievances, including the jurisdiction question pursuant to section 209(1) of the PSLRA. The correctness standard applies to issues of procedural fairness and bias (Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339 at para 43).
A. REASONABLENESS (1) Disciplinary Decisions [28] I agree with the Respondent’s citation of Martineau J’s decision in King v Canada (Attorney General), 2012 FC 488 at para 100, 409 FTR 216, for the proposition that the jurisprudence established that the reasonableness standard applies to decisions of an adjudicator with respect to disciplinary matters such as the 10-day suspension in this case:
100 This is a discipline case where the grievor (the applicant) counterattacks by alleging that he was unjustly disciplined and discriminated by the employer because he was acting as a union representative. The jurisprudence of this Court is clear that an adjudicator's interpretation and application of the collective agreement, as well as the adjudicator's regard for the facts and the material before him, should be subject to the reasonableness standard [sources omitted]. Here, the legal issue of misconduct is of mixed fact and law, and the interpretation of section 194 of the PSLRA cannot be easily separated from the facts.
(2) Non-Disciplinary Decisions [29] I also agree with the Respondent that this Court already determined the degree of deference to afford to the PSLRB regarding the interpretation of section 209(1)(b) of the PSLRA. In Chamberlain v Canada (Attorney General), 2012 FC 1027, 417 FTR 225, Gleason J held that the reasonableness standard applies when an adjudicator appointed to the PSLRB interprets and applies his or her home statute, particularly paragraph 209(1)(b) of the PSLRA, in order to determine whether the adjudicator has jurisdiction relating to grievances that arise from employer decisions which the Applicant alleges are disciplinary actions resulting in termination, demotion, suspension or financial penalty, such being the issue in this case.
[30] Finally, I agree with the Respondent that in accordance with Chamberlain, the reasonableness standard of review applies to the review of the adjudicator’s review of the reliability status decision but through a slightly different analysis.
[31] In addition to Chamberlain, the Respondent cites two cases of this Court in order to state that the reliability status decision is a discretionary decision and thus attracts the reasonableness standard.
[32] The first is Myers v Canada (Attorney General), 2007 FC 947, 319 FTR 35, wherein Kelen J wrote at paragraph 13:
13 With respect to the expertise of the decision-maker, it is clear that a valid reliability status is a term of employment for positions within the federal public service. The decision to revoke an "enhanced reliability status" is therefore one that concerns human resources management in the federal public administration. Paragraph 30(1)(d) of the CRA Act gives the CRA authority over all matters relating to "human resources management, including the determination of the terms and conditions of employment of persons employed by the Agency." As such, in relation to matters of whether an individual is "reliable" in the eyes of the CRA, the decision-maker has special expertise and deference should be afforded.
[33] The second is Koulatchenko v Financial Transactions and Reports Analysis Centre of Canada, 2014 FC 206, wherein Kane J wrote at paragraph 30: “Decisions regarding the security clearance and reliability status are discretionary in nature and will be reviewed on the reasonableness standard.”
[34] Those cases could be factually distinguishable from the present case. In each of those cases, the Court reviewed the actual decision maker’s decision to revoke a security clearance or reliability status at the first instance. It did not involve a review of a PSLRB adjudicator’s review of the revocation decisions.
[35] Myers dealt with the Court’s review of the CRA, while in Koulatchenko, Kane J reviewed the Director of Financial Transactions and Reports Analysis Centre of Canada’s decision to revoke, amongst others, the Applicant’s secret security clearance and reliability status. I note Rennie J’s recent decision in Meyler v Canada (Attorney General), 2015 FC 357, where he reviewed the Minister of Transport’s revocation of that applicant’s Transportation Security Clearance at Pearson International Airport. Since the Court reviewed the actual decision maker that revoked the reliability status or security clearance in those cases, and not that of the PSLRB adjudicator’s assessment of those decisions, much of the analysis turned on whether the decision maker accorded the applicant in those cases a requisite amount of procedural fairness.
[36] However, the fact that the Court reviewed questions of procedural fairness related to the revocation decisions in those cases does not determine the standard of review applicable in this case.
[37] Here, the Court is not conducting an appeal nor a de novo hearing, nor a judicial review of C/Supt. Lanthier’s reliability status decision. Instead, the Court is judicially reviewing the adjudicator’s decision to dismiss the Applicant’s grievances related to the reliability status decision after concluding she did not possess jurisdiction under section 209(1)(b) of the PSLRA to hear those grievances. The adjudicator reached this conclusion by interpreting that provision of her home statute in finding that C/Supt. Lanthier’s reliability status decision did not constitute “a disciplinary action resulting in termination, demotion, suspension or financial penalty.” In assessing the nature of the reliability status decision, the adjudicator recognized she was not conducting a judicial review by assessing the reasonableness of that decision, but rather the jurisprudence required her to look past C/Supt. Lanthier’s stated intention for making the reliability status decision, and determine if, in reality, that decision was a disguised disciplinary decision or tainted by bad faith or breaches of procedural fairness. For the reasons provided below, I find that the adjudicator reasonably concluded that C/Supt. Lanthier made his decision based on legitimate security concerns, and not based on a bad faith attempt to discipline the Applicant. Furthermore, the procedural deficiencies related to the process in making the reliability status decision did not taint the entire decision. Finally, the 38-day de novo adjudication cured those defects in any event.
[38] Therefore, the Court’s review related to the reliability status decision is two-fold:
1) On the reasonableness standard: did the adjudicator reasonably determine that, pursuant to section 209(1)(b), she lacked jurisdiction over that decision after characterizing the decision as administrative rather than a disguised disciplinary decision or tainted by bad faith or procedural fairness issues; and
2) On a correctness standard: did the adjudicator meet her duty of procedural fairness towards this Applicant in conducting the 38-day de novo adjudication of those grievances?
[39] Unlike Myers, Koulatchenko and Meyler, the Court here is not asking whether the employer met its duty of procedural fairness toward the Applicant, rather the Court is reviewing the adjudicator’s de novo assessment of the employer’s decisions, and asking whether the adjudicator met her duty of procedural fairness and made a reasonable decision. As Urie JA, for the Federal Court of Appeal, held in Tipple v Canada (Treasury Board), [1985] FCJ No 818, 2 ACWS (3d) 193 (CA):
Assuming that there was procedural unfairness in obtaining the statements taken from the Applicant by his superior (an assumption upon which we have considerable doubt) that unfairness was wholly cured by the hearing de novo before the Adjudicator at which the Applicant had full notice of the allegations against him and full opportunity to respond to them. In particular, it was no error of law for the Adjudicator to give such weight as he thought right to statements which were, in our view, properly admitted in evidence by him.
[40] The Applicant might have argued that the adjudicator erred in law when the adjudicator reco