Murphy v. Canada (Attorney General)

Murphy v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-01-13
Neutral citation
2023 FC 57
File numbers
T-1718-21
Decision Content
Date: 20230113
Docket: T-1718-21
Citation: 2023 FC 57
Ottawa, Ontario, January 13, 2023
PRESENT: The Honourable Madam Justice Rochester
BETWEEN:
JOCELYNE MURPHY AND
SHERRY RAFAI FAR
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] This is a motion in writing under Rules 51 and 369 of the Federal Courts Rules, SOR/98-106 [Rules], to appeal the Order and Reasons of Associate Justice Mireille Tabib dated February 7, 2022, [Order] arising from the Respondent’s motion to have the present judicial review struck.
[2] The Applicants, Jocelyne Murphy and Sherry Rafai Far, are employees of the Government of Canada, specifically Justice Canada. They are subject to the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police [Vaccination Policy], which requires them to be fully vaccinated against COVID-19, unless accommodation is warranted, and to disclose their vaccination status to their employer.
[3] The Applicants are unvaccinated. On November 1 and 2, 2021, they respectively received letters from their manager informing them that they were required to adhere to the Vaccination Policy by November 15, 2021, failing which they would be placed on administrative leave without pay until such time as they complied.
[4] On November 12, 2021, the Applicants commenced the present judicial review seeking: (i) a declaration that the Vaccination Policy is void ab initio; (ii) an order that they be reinstated in their positions as if there had been no interruption, including with respect to salary and benefits; and (iii) an award of damages under Article 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 [Charter].
[5] The Respondent filed a motion to have the judicial review struck on the basis that it was premature because the Applicants had failed to exhaust the grievance process set out in the Federal Public Sector Labour Relations Act, SC 2003, c 22 [Act].
[6] In her Order, Associate Justice Tabib concluded that the grievance process provided for in the Act was not clearly precluded. As such, the application for judicial review was doomed to fail given the Applicants were required to avail themselves of the grievance process prior to applying to the Federal Court for judicial review. Furthermore, Associate Justice Tabib concluded that the Applicants had not established that exceptional circumstances existed that would justify bypassing their obligation to follow the grievance process available to them. Consequently, the application for judicial review was struck.
[7] On February 17, 2022, Ms. Murphy, only one of the two Applicants, filed the present appeal alleging that Associate Justice Tabib committed errors of fact and law. In particular, Ms. Murphy alleges that Associate Justice Tabib erred in: (i) characterizing the nature of the application; (ii) concluding that there was adequate and effective relief through the grievance process; (iii) failing to recognize that the facts as alleged demonstrated that there was not an effective right to grieve; (iv) failing to permit the Applicants to adduce additional evidence; (v) reversing the burden of proving that the grievance scheme is not available; and (vi) not finding that exceptional circumstances exist to permit the Applicants to continue their application for judicial review. Ms. Murphy also pleads that there are doubts as to Associate Justice Tabib’s impartiality.
[8] For the reasons set out below, Ms. Murphy has failed to persuade me that Associate Justice Tabib erred in striking the Applicants’ judicial review application. As such, this appeal of the Order is dismissed.
II. Issues
[9] The central issue on this appeal is whether Associate Justice Tabib erred in granting the Respondent’s motion to strike the application for judicial review. The issues raised on this appeal in this regard may be reformulated and subdivided as follows:
Is Associate Justice Tabib biased?
Are the additional affidavits filed by Ms. Murphy on appeal admissible?
Did Associate Justice Tabib err in law?
Did Associate Justice Tabib err in her characterization of the nature of the application for judicial review?
Did Associate Justice Tabib err in her conclusion that the grievance process was available, adequate and effective in the circumstances of the present case?
Did Associate Justice Tabib err in determining that exceptional circumstances did not exist that would have justified proceeding with the judicial review?
III. Standard of Review
[10] Save for the first two issues, the applicable standard of review for an appeal under Rule 51, which relates to a discretionary order of an Associate Judge is set out in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira] at paragraphs 64, 66 and 79. Such orders are to be reviewed on the civil appellate standard (Housen v Nikolaisen, 2002 SCC 33) and “should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error in regard to the facts” (Hospira at para 64). Questions of mixed fact and law are subject to the palpable and overriding error standard while questions of law, and mixed questions where there is an extricable question of law, are subject to the standard of correctness (Worldspan Marine Inc v Sargeant III, 2021 FCA 130 at para 48).
[11] An exercise of discretion by an Associate Judge involves applying legal standards to the facts as found. For the purposes of the Housen framework, exercises of discretion are questions of mixed fact and law (Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at para 72 [Mahjoub]). Such questions of mixed fact and law, including exercises of discretion, can be set aside only on the basis of palpable and overriding error unless an error on an extricable question of law or legal principle is present (Mahjoub at para 74). The Federal Court of Appeal explains the notion of an extricable question of law by way of the following example in Mahjoub:
[74] … So, for example, if an appellate court can discern some error in law or principle underlying the first-instance court’s exercise of discretion, it can reverse the exercise of discretion on account of that error. Another way of putting this is whether the discretion was “infected or tainted” by some misunderstanding of the law or legal principle: Housen at para. 35.
[12] Palpable and overriding is a highly deferential standard of review. “Palpable” means an error that is obvious, while “overriding” means an error that goes to the very core of the outcome of the case (Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46 [South Yukon]). When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing, rather the entire tree must fall (South Yukon at para 46; Mahjoub at para 61).
IV. The Federal Public Sector Labour Relations Act, SC 2003, c 22
[13] An overview of the legislative scheme is helpful. The right to grieve is available to both unionized and non-unionized employees. Pursuant to section 208 of the Act, an employee may present an individual grievance relating to any matter set out therein:
Individual Grievances
Griefs individuels
Presentation
Présentation
Right of employee
Droit du fonctionnaire
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
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) by the interpretation or application, in respect of the employee, of
a) par l’interprétation ou l’application à son égard :
(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
(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) a provision of a collective agreement or an arbitral award; or
(ii) soit de toute disposition d’une convention collective ou d’une décision arbitrale;
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
b) par suite de tout fait portant atteinte à ses conditions d’emploi.
Limitation
Réserve
(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.
(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.
Limitation
Réserve
(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value.
(3) Par dérogation au paragraphe (2), le fonctionnaire ne peut présenter de grief individuel relativement au droit à la parité salariale pour l’exécution de fonctions équivalentes
Limitation
Réserve
(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.
(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.
Limitation
Réserve
(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.
(5) Le fonctionnaire qui choisit, pour une question donnée, de se prévaloir de la procédure de plainte instituée par une ligne directrice de l’employeur ne peut présenter de grief individuel à l’égard de cette question sous le régime de la présente loi si la ligne directrice prévoit expressément cette impossibilité.
Limitation
Réserve
(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
(6) Le fonctionnaire ne peut présenter de grief individuel portant sur une mesure prise en vertu d’une instruction, d’une directive ou d’un règlement établis par le gouvernement du Canada, ou au nom de celui-ci, dans l’intérêt de la sécurité du pays ou de tout État allié ou associé au Canada.
Order to be conclusive proof
Force probante absolue du décret
(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
(7) Pour l’application du paragraphe (6), tout décret du gouverneur en conseil constitue une preuve concluante de ce qui y est énoncé au sujet des instructions, directives ou règlements établis par le gouvernement du Canada, ou au nom de celui-ci, dans l’intérêt de la sécurité du pays ou de tout État allié ou associé au Canada.
[14] Section 236, below, has been described an ouster of the courts’ jurisdiction (Wojdan v Canada (Attorney General), 2021 FC 1341 at para 21 [Wojdan]). The right to grieve provided for in the Act is in lieu of the rights of action an employee may have in relation to the circumstances giving rise to the dispute.
No Right of Action
Absence de droit d’action
Disputes relating to employment
Différend lié à l’emploi
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
236 (1) Le droit de recours du fonctionnaire par voie de grief relativement à tout différend lié à ses conditions d’emploi remplace ses droits d’action en justice relativement aux faits — actions ou omissions — à l’origine du différend.
Application
Application
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
(2) Le paragraphe (1) s’applique que le fonctionnaire se prévale ou non de son droit de présenter un grief et qu’il soit possible ou non de soumettre le grief à l’arbitrage.
Exception
Exception
(3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.
(3) Le paragraphe (1) ne s’applique pas au fonctionnaire d’un organisme distinct qui n’a pas été désigné au titre du paragraphe 209(3) si le différend porte sur le licenciement du fonctionnaire pour toute raison autre qu’un manquement à la discipline ou une inconduite.
V. Analysis
A. Is Associate Justice Tabib biased?
[15] An allegation of bias engages the very foundation of our judicial system. It calls into question not only the personal integrity of Associate Justice Tabib in this instance but generally the integrity of the entire administration of justice (Coombs v Canada (Attorney General), 2014 FCA 222):
[14] Further, the appellants repeatedly attack the integrity of the [Associate Judge], of the Judge and of the Federal Court …. The appellant’s allegations are most serious, and such a step should not be undertaken lightly. Indeed, an allegation of bias engages the very foundation of our judicial system. The appellants’ allegations call into question not only the personal integrity of the Prothonotary and of the Judge, but the integrity of the entire administration of justice.
[Citation omitted.]
[16] The Federal Court of Appeal explains that an “allegation of bias, especially an allegation of actual, as opposed to apprehended, bias, is a serious allegation as it challenges the very integrity of the adjudicator whose decision is in issue.” (Firsov v Canada (Attorney General), 2022 FCA 191 at para 57 [Firsov]).
[17] The test for determining whether there is actual bias or a reasonable apprehension of bias by a decision maker is well established. The Supreme Court in Committee for Justice and Liberty et al v National Energy Board et al, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 [Committee for Justice and Liberty] at pages 394 and 395 explains:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude”
. . . The grounds for this apprehension must, however, be substantial . . . [and not] related to the “very sensitive or scrupulous conscience”.
[18] More recently, the Federal Court of Appeal in Firsov has confirmed that the test is:
[56] … .whether “an informed person, viewing the matter realistically and practically – and having thought the matter through – … [would] think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at paras. 20-21, 26.
[19] The Supreme Court in Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [Cojocaru] explains that the presumption of judicial impartiality is strong and cannot be easily rebutted:
[15] Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. This reflects the fact that the judge is sworn to deliver an impartial verdict between the parties, and serves the policy need for finality in judicial proceedings.
. . .
[20] The threshold for rebutting the presumption of judicial integrity and impartiality is high. The presumption carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.
. . .
[22] The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[20] In the matter at hand, the onus is on Ms. Murphy, the person challenging the Order, to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that Associate Justice Tabib failed to come to grips with the issues and decide them impartially and independently (Cojocaru at para 22).
[21] Ms. Murphy alleges that the contemptuous tone Associate Justice Tabib used when describing the Applicants’ arguments in paragraphs 34 through 39 of the Order, leaves much doubt as to her impartiality. The Respondent pleads that Ms. Muphy has adduced no evidence that permits one to doubt the impartiality of Associate Justice Tabib. In reply, Ms. Murphy states that she had not formally asked for the Order to be overturned on the basis of bias, but that Associate Justice Tabib lacked impartiality in her comments, her tone was contemptuous and condescending, she mischaracterized the Applicants’ arguments, and that she ought to have known better.
[22] I agree with the Respondent that Ms. Murphy has failed to adduce any evidence that could meet the high threshold necessary to rebut the presumption of judicial integrity and impartiality.
[23] Furthermore, the grounds for an apprehension of bias must be substantial and not related to a sensitive conscience (Committee for Justice and Liberty at 395). Having reviewed the language in the Order, Ms. Murphy has failed to convince me that Associate Justice Tabib was biased. Associate Justice Tabib does refer to the Applicants’ arguments on the possible inadmissibility of their grievance under subsections 208(4) and (6) of the Act as being of “questionable merit”. In the analysis that follows, it is clear that Associate Justice Tabib was not impressed by nor agreed with the Applicants’ arguments on that issue. This does not, however, demonstrate bias.
[24] Indeed, Ms. Murphy’s point appears to conflate Associate Justice Tabib’s findings on the Applicants’ arguments with a finding on the Applicants as individuals. Ms. Murphy refers to Associate Justice Tabib “attacking” the Applicants at the end of paragraph 36 of the Order, when in reality Associate Justice Tabib referred to and commented on the Applicants’ “claim as to a breach of the collective agreement”. There is no indication that Associate Justice Tabib was attacking Ms. Murphy and Ms. Rafai Far personally, and every indication that she simply found the Applicants’ argument to be without merit.
[25] The fact that a member of the Court clearly disagrees with and rejects the arguments of an applicant is not, in and of itself, bias. It is evident that Ms. Murphy disagrees with the findings of Associate Justice Tabib, however, that is not a justification for an allegation of bias. It is worth recalling the Federal Court of Appeal’s teachings that allegations of bias are most serious, should not be undertaken lightly, and when made, engage the very foundation of our judicial system (Coombs at para 14). I am therefore not persuaded that Associate Justice Tabib was biased or lacked impartiality.
B. Are the additional affidavits filed by Ms. Murphy on appeal admissible?
[26] There are two elements to the issue of additional evidence in the context of this appeal. First, Ms. Murphy submits that Associate Justice Tabib breached procedural fairness by ignoring the Applicants’ request to adduce further evidence and refusing to permit the Applicants to respond to the Respondent’s affidavit in reply. Second, Ms. Murphy submitted additional evidence on appeal, in the form of two affidavits with attached documentation.
[27] I turn now to the first of the two issues, being the events at the hearing before Associate Justice Tabib. By way of background, the Respondent’s motion to strike was filed on November 26, 2021. The Applicants’ response was filed on December 10, 2021, with the Respondent’s reply filed on December 17, 2021. The Respondent’s reply included an affidavit attaching the grievances filed by the Applicants on December 6, 2021. The matter was heard on January 17, 2022. At the hearing before Associate Justice Tabib, she heard representations from both parties as to whether the Court should authorize the filing of the Respondent’s affidavit in reply. Finding that the affidavit was relevant to the issues before the Court and noting the lack of prejudice to the Applicants, the Associate Judge allowed the Respondent’s request for the affidavit to form part of the record.
[28] In her submissions in the present appeal, Ms. Murphy argues that during the hearing, once the Associate Judge had allowed the Respondent to file its affidavit, Ms. Murphy requested to file new evidence that was not available at the time she filed her response. Ms. Murphy alleges that Associate Justice Tabib did not respond to the Applicants’ request and failed to permit them to respond to the Respondent’s evidence (Ms. Murphy’s Reply at para 13). Ms. Murphy does not provide any indication as to when during the hearing this request was made nor was a transcript of the hearing included.
[29] Ms. Murphy submits that the failure by Associate Justice Tabib to permit the Applicants to file additional evidence is a flagrant breach of procedural fairness with respect to a major issue in the case (Ms. Murphy’s Reply at para 14). Ms. Murphy states that she is not contesting the Associate Judge’s decision on the admissibility of the Respondent’s evidence, however, on the basis of procedural fairness, the Associate Judge ought to have allowed the Applicants to file their evidence (Ms. Murphy’s Reply at paras 15-16).
[30] Having listened to the recording of the entire hearing before Associate Justice Tabib, there is a disconnect between what Ms. Murphy alleges took place at the hearing and what in fact took place. While the Respondent’s informal motion on its affidavit was being debated, the points raised by the Applicants centred on why the Court ought to refuse the filing of the affidavit. In particular, the Applicants argued that: (i) the Respondent’s motion to strike was brought prematurely and too quickly; (ii) the grievances are confidential; and (iii) allowing the grievances into the record risks colouring the file, confusing the Court, and detracting from their position that they are only contesting the legality of the Vaccination Policy. During the debate on the Respondent’s affidavit, the Applicants did not make an informal request to file further evidence.
[31] Later in the hearing, in the context of the Applicants’ arguments on whether an adequate and effective grievance process was available, Associate Justice Tabib pressed Ms. Murphy as to the relevance of a 3rd Level grievance decision pertaining to Bernard Desgagné, an employee at Public Services and Procurement Canada, appended to the Affidavit of Mr. Desgagné. The Associate Judge enquired for what purpose the decision was being adduced and whether it was the Applicants’ position that it was binding, a precedent, or whether the Court is to presume that all decision makers will behave in the same manner as this one with respect to subsection 208(6) of the Act.
[32] Ms. Murphy sought to argue that the Respondent is using subsection 208(6) of the Act to exclude grievances, using the grievance decision of Mr. Desgagné as evidence of this. In that context, and upon being questioned by the Associate Judge, Ms. Murphy argues that if they had been authorized to file further evidence they would be able to show that subsection 208(6) of the Act was being used to exclude grievances. She expresses her frustrations that she has at least 12 other decisions evidencing the fact that the grievance process is actually ineffective but they are not in the record. She states that they thought about seeking to adduce those decisions into evidence but decided not to because they did not want to delay the hearing. Ms. Murphy states that she was concerned that if she had filed additional evidence then more time would be requested to file evidence in response and the hearing would be delayed. Ms. Murphy states that she had wanted to adduce the evidence because it shows that, in reality there is no grievance process available because of subsection 208(6) of the Act.
[33] Ms. Murphy then mentions that if the Court is open to it, then she would be prepared to file more evidence, but at that moment the Associate Judge takes her back to the initial question being whether the other grievance decisions bind this Court or does the Court have to be guided by such a decision. The Associate Judge states that even if there are 100 grievance decisions like the one in the record, the decision in evidence nevertheless refers to an additional level of grievance. The Associate Judge enquires where there has then been a judicial review, an arbitration, a decision by a member of this Court or any authority that binds her. She then sought the Applicants’ position in law as to the effect of the decision in the record and subsection 208(6) of the Act and then the debate moved on.
[34] I find Ms. Murphy’s allegation that there was a breach of procedural fairness unfounded. Nor do I find that Associate Justice Tabib erred by failing to permit the Applicants to file further evidence. I cannot discern from the exchanges a clear request by the Applicants at the hearing to file further evidence. While Ms. Murphy raised the existence of other grievance decisions in order to support her argument, at no point in time, in my view, did she clearly make an informal motion to file further evidence.
[35] In addition, the decision to refrain from adducing further evidence in advance of the hearing was a conscious decision on the part of the Applicants. Ms. Murphy repeatedly stated that they chose not to seek to file such evidence in order to avoid the risk of the hearing being delayed. This was a litigation choice by the Applicants. As such, Ms. Murphy cannot now allege a breach of procedural fairness on the part of Associate Justice Tabib because the Applicants elected in advance to avoid seeking to file additional evidence and then expressed frustration at the hearing because it was not before the Court for the Associate Judge to consider.
[36] I turn now to the second issue, being the additional evidence that Ms. Murphy seeks to adduce in the present appeal. This evidence is comprised of two affidavits with attached documentation.
[37] Before addressing the contents of the additional evidence, it bears mention that the two affidavits were included in Ms. Murphy’s motion record and the submissions appear to simply assume that the additional evidence is properly in the record. No informal request is made in the Memorandum for the Court to admit the two affidavits. The additional evidence is referred to in numerous places in the Memorandum without clearly highlighting that it is new (paras 10(l), 52 and 66 of the Memorandum of Fact and Law). Moreover, Ms. Murphy references the contents of the additional evidence and submits that the facts contained therein must be presumed to be true (para 10(l) of the Memorandum of Fact and Law). The justification provided for including the additional evidence at this stage appears to be that, (i) if the Respondent had not brought the motion to strike prematurely then the additional evidence would have been in the Applicants’ response to the motion and; (ii) the Respondent had its affidavit accepted before Associate Justice Tabib and now the Applicants wish to provide evidence in response (at paras 59 through 63). Ms. Murphy also states that in any event she meets the criteria found in Canada v General Electric Capital Canada Inc, 2010 FCA 290 without elaborating further.
[38] The Respondent pleads in its response that the two affidavits are not properly before the Court. It is only in her reply that Ms. Murphy fully engages with the issue of whether the two affidavits ought to be admitted on appeal.
[39] This is a motion for appeal in writing. The responding party, the Respondent, was entitled to know and respond to all the substantive arguments that Ms. Murphy is relying on, as there is no further opportunity to make submissions. Ms. Murphy was obliged to put her best foot forward. As to Ms. Murphy’s Reply, Justice Anne L. Mactavish explains in Deegan v Canada (Attorney General), 2019 FC 960, at paragraph 121 the principles applicable to a reply:
[121] It is a well-established principle that new arguments are not the proper subject of Reply. The purpose of a Reply is to respond to matters raised by the opposing party, not to produce new arguments or new evidence that should have been raised in first instance. Proper Reply is limited to issues that a party had no opportunity to deal with, or which could not reasonably have been anticipated.
[40] While thin, I nevertheless consider that Ms. Murphy has raised the issue sufficiently that this Court will consider her arguments in reply. I will therefore proceed to outline the contents of the additional evidence and consider the parties’ submissions thereon.
[41] The first affidavit is an affidavit from Ms. Murphy sworn on February 16, 2022 [Murphy Affidavit]. Appended to the Murphy Affidavit are exchanges between Ms. Murphy and the Department of Justice wherein they declined Ms. Murphy’s request to skip grievance Levels 1 and 2, and proceed directly to Level 3. The exchanges evidence Ms. Murphy’s frustration with that decision, which she characterizes as being taken in bad faith in order to delay the process. These exchanges took place over the course of a month commencing on December 9, 2021. Also appended to the Murphy Affidavit are Ms. Murphy’s two grievance decisions, namely, the Level 1 decision dated December 23, 2021, and the Level 2 decision dated January 28, 2022. Both decisions rejected the grievance on the basis that Ms. Murphy had not complied with the Vaccination Policy.
[42] The second affidavit is an affidavit from Bernard Desgagné sworn on February 16, 2022, to which he appends a series of grievance decisions [Desgagné Affidavit]. An affidavit by Mr. Desgagné was also filed in the initial response to the Respondent’s motion, attaching his 3rd Level grievance decision that formed the subject of the exchanges between the Associate Judge and Ms. Murphy that are described above. There are ten decisions appended as Exhibit A to the Desgagné Affidavit. They are listed below, indicating: (i) the department or agency of the decision maker and the employee; and (ii) the level and date of the decision, and where the decision refers to an earlier decision, the earlier decision is also listed:
Public Services and Procurement Canada – 3rd Level on November 23, 2021; 4th Level on December 24, 2022;
National Defence – 3rd Level on November 26, 2021;
Canada Revenue Agency – 2nd Level on January 10, 2022;
Health Canada – 3rd Level on January 25, 2022;
Public Services and Procurement Canada – 3rd Level on November 23, 2021; 4th Level on December 23, 2021;
Public Services and Procurement Canada – 2nd Level on December 21, 2021; Final Level on January 18, 2022;
Public Services and Procurement Canada – 3rd Level on November 25, 2021; 4th Level on December 23, 2021;
Public Services and Procurement Canada – 3rd Level on January 12, 2022;
Public Services and Procurement Canada – 3rd Level on December 10, 2021; 4th Level on December 24, 2021;
Service Canada – Final Level on January 7, 2022.
[43] Exhibit B to the Desgagné Affidavit concerns a referral to arbitration of a grievance of an employee at the Canada Revenue Agency. The individual’s Level 2 decision dated January 10, 2022, was included in Exhibit A. The letter raises, among other things, that the employee had failed to present his grievance to the final level and the grievance does not relate to a disciplinary measure, such that it was the position of Public Services and Procurement Canada that it was premature to have the matter referred to an arbitrator.
[44] Additional evidence on an appeal from an Associate Judge’s order is not the norm, rather it is the exception. As confirmed by Justice Catherine M. Kane in David Suzuki Foundation v Canada (Health), 2018 FC 379 [David Suzuki] an appeal of an Associate Judge’s Order is to be decided on the basis of what was before the Associate Judge and that it is only in exceptional circumstances that new evidence may be admitted on appeal (at para 36; see also Onischuk v Canada (Revenue Agency), 2021 FC 486 at para 13).
[45] New evidence may be exceptionally admitted where: (1) it could not have been made available earlier; (2) its admission will serve the interests of justice; (3) the evidence will assist the Court; and (4) its admission will not severely prejudice the other side (David Suzuki at para 37; Dermaspark Products Inc v Prestige MD Clinic, 2022 FC 1550 at para 17 [Dermaspark]; Master Tech Inc v Canada (Public Safety and Emergency Preparedness), 2021 FC 681 at para 14). Evidence will assist the Court where it affects the outcome or has an impact on the merits of the appeal (David Suzuki at para 38; Dermaspark at para 17).
[46] The Respondent relies on David Suzuki and pleads that the two affidavits do not meet the criteria for admissibility. As to the Desgagné Affidavit, the Respondent submits that the attached decisions do not assist the Court, affect the outcome of the appeal and, constitute hearsay. The Respondent pleads that the fact that other public servants have filed grievances does not impact on the finding by the Associate Judge that the Applicants have an adequate and effective grievance process available to them. Moreover, the decision makers are not bound by each other’s decisions, consider different issues, and no Final Level decision from the Department of Justice has been submitted.
[47] As to the Murphy Affidavit, the Respondent submits that it does not assist the Court, is not in the interests of justice, and has no impact on the outcome of the appeal. The Respondent pleads that the documents attached with respect to Ms. Murphy’s grievance actually confirm that the deadlines and the procedures contained in the collective bargaining agreement are being followed and are not yet exhausted.
[48] In her Reply, Ms. Murphy pleads that all the documents attached to the two affidavits, save for one, post-date the filing of her response to the motion to strike on December 10, 2021. She pleads that all the decisions are from grievance files relating to the Vaccination Policy and thus there is no surprise or prejudice. Ms. Murphy submits that they are highly relevant because: (i) the Court has previously found the Applicants’ grievance as filed to be relevant; (ii) it is only in the resulting decisions can one evaluate whether the process is efficient and useful; and (iii) the decisions show that the process is not effective because the grievors are being told to go see their members of parliament or are informed that the matter cannot be addressed on the basis of subsections 208(4) and (6) of the Act or their equivalent.
[49] Ms. Murphy submits that the decisions are not hearsay, and that she is obliged to file the decisions of others because the employer is voluntarily delaying the process and is acting in bad faith by forcing her to go through inappropriate levels of the grievance process.
[50] Ms. Murphy further submits that it is in the interests of justice to admit the additional evidence on the basis that Associate Justice Tabib breached procedural fairness by failing to permit the Applicants to file the evidence. This argument has been dealt with in the first part of this section of this order.
[51] Having considered the additional evidence and the submissions of the parties, I find the evidence falls short of satisfying the circumstances detailed above for the exceptional admission of new evidence (David Suzuki at para 37).
[52] As to when the evidence became available, much of the material was not available at the time the Applicants filed their response to the motion to strike on December 10, 2021. While a number of the decisions were available by the hearing on January 17, 2022, I find that a portion of the material was not available by that time. The strength of Ms. Murphy’s argument on this point, however, is undercut somewhat by the fact that at the hearing she stated numerous times that the decision to not adduce the evidence in hand, specifically more than 12 decisions, was made strategically because they did not wish to risk delaying the hearing.
[53] I also find merit in Ms. Murphy’s argument that the Respondent would not be prejudiced by the admission of the additional evidence.
[54] The problematic issue for the additional evidence is whether it will assist the Court, in the sense that it could have an impact on the merits of the appeal.
[55] Ms. Murphy pleads that most of the grievance decisions show that no matter the level of grievance the sole solution is to speak to your member of parliament and that subsections 208(4) and (6) of the Act, or their equivalents, serve to block the grievances. I disagree. Of the twelve decisions, two of which are Ms. Murphy’s and ten relate to other public servants, only five reference the equivalent of subsections 208(4) and (6) of the Act, and four of the five decisions emanate from the same decision maker, Lucie Seguin of Public Services and Procurement Canada.
[56] As to the reference to the Member of Parliament, in the decisions pertaining to Mr. Desgagné, the decision maker states that they are not in a position to answer Mr. Desgagné’s questions about the basis for imposing the Vaccination Policy, and suggests he consults his federal Member of Parliament and follow up with his union for the information he seeks. It is not clear from the decisions what questions Mr. Desgagné had as