Chopra v. Canada (Attorney General)

Chopra v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-03-25
Neutral citation
2014 FC 246
File numbers
T-2027-11, T-2029-11, T-2030-11, T-2032-11, T-2033-11
Decision Content
Date: 20140325
Dockets:
T-2027-11
T-2029-11
T-2033-11
T-2030-11
T-2032-11
Citation: 2014 FC 246
Ottawa, Ontario, March 25, 2014
PRESENT: The Honourable Madam Justice Mactavish
Dockets:
T-2027-11
T-2029-11
T-2033-11
BETWEEN:
SHIV CHOPRA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Dockets:
T-2030-11
T-2032-11
AND BETWEEN:
MARGARET HAYDON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
(Confidential Reasons for Judgment and Judgment released March 13, 2014)
TABLE OF CONTENTS
PARA.
I.
Introduction........................................................................................................................... ............................................................................................................................................... ...............................................................................................................................................
1
II.
Background .......................................................................................................................... ............................................................................................................................................... ...............................................................................................................................................
5
III.
Dr. Chopra’s 10-Day Suspension..........................................................................................
30
A. The Circumstances Giving Rise to the Discipline.....................................................
31
B. The Adjudicator’s Decision.......................................................................................
69
C. The Issues.................................................................................................................. ...................................................................................................................................
75
D. Analysis.....................................................................................................................
77
(1) Did the Adjudicator Fail to Make a Finding as to Whether Dr. Chopra Knew he was Disobeying a Direct Order?....................................................
89
(2) Did Health Canada Condone Dr. Chopra’s Absence from the Workplace? .......................................................................................
109
(3) Was Health Canada Entitled to Discipline Dr. Chopra in Light of his Health and Safety Concerns?......................................................
116
(4) Did Health Canada Fail to Prove all of the Grounds for Discipline?
122
E. Conclusion.................................................................................................................
129
IV.
The “Speaking Out” Grievances............................................................................................
130
A. The Statements in Issue.............................................................................................
136
B. The Disciplinary Letters............................................................................................
170
C. The Adjudicator’s Decision.......................................................................................
178
D. The Issues..................................................................................................................
185
E. Was the Adjudicator’s Finding on the Issue of Delay Reasonable?.........................
187
F. Conclusion on the “Speaking Out” Grievances.........................................................
220
V.
The Termination of Dr. Chopra’s Employment.....................................................................
222
A. Background...............................................................................................................
224
B. The Adjudicator’s Decision.......................................................................................
247
C. The Issues.................................................................................................................. ...................................................................................................................................
260
D. Analysis.....................................................................................................................
262
(1) Health Canada’s Similar Treatment of Drs. Chopra, Haydon and Lambert ............................................................................................
270
(2) Did the Adjudicator Err in Making his Finding of Insubordination?
279
(3) Did the Adjudicator Fail to Consider Relevant Arguments and Evidence?..........................................................................................
285
(4) Did the Adjudicator Fail to Consider both Grounds for Discharge?
302
E. Conclusion.................................................................................................................
311
VI.
The Termination of Dr. Haydon’s Employment....................................................................
317
A. Background...............................................................................................................
319
B. The Adjudicator’s Decision.......................................................................................
352
C. The Issues.................................................................................................................. ...................................................................................................................................
364
D. Analysis.....................................................................................................................
366
(1) Health Canada’s Similar Treatment of Drs. Chopra, Haydon and Lambert ...........................................................................................
367
(2) Did the Adjudicator Misstate the Law on Insubordination Resulting in a Flawed Analysis?.......................................................
368
(3) Did the Adjudicator Fail to Address Relevant Arguments and Evidence?..........................................................................................
377
(4) Did the Adjudicator Fail to Consider all of the Grounds for Discipline?.........................................................................................
393
E. Conclusion.................................................................................................................
401
VII.
Final Conclusion ...................................................................................................................
409
VIII.
Costs ................................................................................................................................... ...................................................................................................................................
415
I. Introduction
[1] Following a lengthy hearing, an adjudicator dismissed grievances filed by Dr. Shiv Chopra and Dr. Margaret Haydon with respect to disciplinary measures imposed on them by their employer, Health Canada. These included the suspension of Dr. Chopra for insubordination and an unauthorized absence from work, the suspensions of both applicants for speaking to the media, and the termination of their employment for insubordination.
[2] Drs. Chopra and Haydon have each brought applications for judicial review with respect to the adjudicator’s decision. Dr. Chopra challenges the dismissal of his grievances relating to 10-day and 20-day suspensions, and the termination of his employment. Dr. Haydon seeks judicial review of the decision dismissing her grievances with respect to a 10-day suspension and the termination of her employment. Because the facts of these cases are intertwined, these reasons shall apply to all five applications for judicial review.
[3] For the reasons that follow, I have concluded that Dr. Chopra’s application for judicial review of his 10-day suspension for insubordination and for being on unauthorized leave should be dismissed. However, Drs. Chopra and Haydon’s applications for judicial review of their suspension for speaking to the media will be granted.
[4] I have further concluded that the findings of insubordination giving rise to the termination of Drs. Chopra and Haydon’s employment were reasonable. However, the appropriateness of termination as a sanction for that misconduct will have to be re-determined in Dr. Haydon’s case because of the Adjudicator’s erroneous reliance on stale discipline in upholding the penalty. The appropriateness of termination as a sanction in both cases may also have to be revisited in the event that Dr. Chopra and Dr. Haydon are ultimately successful in challenging their suspensions for speaking to the media.
II. Background
[5] The following review is intended to provide a general context for these applications. A more detailed review of the facts giving rise to each of the applications will be provided further on in these reasons, as each application for judicial review is addressed.
[6] Dr. Chopra began working as a drug evaluator for what was then called the Bureau of Veterinary Drugs (BVD) at Health Canada in 1987. The BVD is now known as the Veterinary Drug Directorate (VDD). At the time of the events at issue in these proceedings, Dr. Chopra worked in the Human Safety Division (HSD) of the VDD. Dr. Haydon began working as a drug evaluator for Health Canada in 1983. At the material time she worked in the Clinical Evaluation Division (CED) of the VDD.
[7] “Veterinary drugs” are substances which are used to prevent and treat disease in animals, to promote growth, control reproduction, or provide humane means of restraint and relief of pain in animals.
[8] Health Canada is the regulatory authority responsible for approving new veterinary drugs and new uses of existing approved drugs in accordance with the provisions of the Food and Drugs Act, R.S.C., 1985, c. F-27. Amongst other things, Health Canada’s mandate is to protect the health and safety of Canadians in accordance with the applicable legislation.
[9] Drug evaluators are responsible for making scientific assessments and recommendations as to the safety and efficacy of pharmaceutical products for use in animals and fish. They are also required to examine whether new veterinary drugs may have adverse effects on human health, and to ensure that new drugs comply with the human safety requirements of the Food and Drugs Act and Regulations.
[10] Drug evaluators do not themselves approve or reject New Drug Submissions. Once they have reviewed the relevant data, they make a recommendation as to whether or not a veterinary drug should be approved for sale in Canada. The decision to approve or reject a new drug submission is ultimately made by a delegate of the Minister of Health.
[11] Once a veterinary drug is approved for use by Health Canada, a Notice of Compliance (“NOC”) is issued to the manufacturer. This permits the marketing of the product in Canada in accordance with the terms of the approval.
[12] Over the years, a number of issues arose between Drs. Chopra and Haydon and Health Canada. Amongst other things, by the late 1990s, the applicants (and some of their colleagues) had become concerned that problems with the drug review process were potentially having a negative impact on the health and safety of Canadians.
[13] In particular, the applicants believed that drug evaluators were being pressured to approve drugs of questionable safety. Drs. Chopra and Haydon were particularly concerned about the use of growth hormones and antibiotics in animals intended for human consumption, given the potential impact of these drugs on human health and safety. In the case of antibiotics, the applicants were concerned that their non-therapeutic use in animals was contributing to the development of antimicrobial resistance (or “AMR”) which poses a risk to human health. AMR develops when strains of pathogenic microbes become increasingly resistant to antibiotics over time, making infections more difficult and potentially impossible to treat.
[14] Drs. Chopra and Haydon endeavoured to have their concerns addressed internally through various means. These included raising the matter with their Union, filing several grievances, and writing to the Health Minister requesting his intervention in the matter.
[15] Dr. Chopra also filed a grievance against “Health Canada Management” in 1997 alleging “persistent and repeat harassment”. He asserted, among other things, that he had been subject to coercion to approve drug products of questionable safety, and that he had been denied access to required regulatory information to allow him to perform his job. Dr. Chopra further alleged that he had been subject to direct and implied threats of discipline, and that he had been defamed.
[16] However, the applicants were not satisfied with the results of these efforts, believing that their employer had failed to properly address their concerns.
[17] The applicants also requested an external investigation of the drug approvals process in Canada, and voiced their concerns outside of Health Canada. Amongst other things, the applicants wrote a letter to the Prime Minister requesting his assistance in the matter. They also initiated proceedings before the Public Service Staff Relations Board under the Public Service Staff Relations Act, S.C. 2003, c. 22, s. 2, and participated in hearings before the Standing Senate Committee on Agriculture and Forestry.
[18] Drs. Chopra and Haydon also spoke to the media on a number of occasions with respect to these and other concerns. These public statements led to disciplinary action being taken against them by their employer which ultimately resulted in this Court’s decision in Haydon v. Canada, [2001] 2 F.C. 82, 192 F.T.R. 161(T.D.) (Haydon #1), Chopra v. Canada (Treasury Board) [2005] F.C.J. No. 1189, aff’d 2006 FCA 295 (Chopra #1), and Haydon v. Canada (Treasury Board), [2004] F.C.J. No. 932, aff’d 2005 FCA 249, [2006] 2 F.C.R. 3 (Haydon #2).
[19] Drs. Chopra and Haydon were successful in challenging the disciplinary action taken against them in Haydon #1. Justice Tremblay-Lamer found that the applicants’ statements with respect to their concerns regarding the approval of growth hormones and antibiotics and their view that drug evaluators were being pressured to approve drugs of questionable safety amounted to the disclosure of policies that jeopardized life, health or safety of the public. As a consequence, the statements came within one of the exceptions to the duty of loyalty recognized by the Supreme Court of Canada in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, [1985] S.C.J. No. 71.
[20] The applicants were, however, unsuccessful in having the disciplinary measures against them set aside in Haydon #2 and Chopra #1.
[21] In Chopra #1, this Court concluded that it was reasonable for an adjudicator to find that Dr. Chopra breached his duty of loyalty by publicly criticizing a decision by Health Canada to stockpile drugs, including ciprofloxacin, in response to the anthrax scare in the wake of the 9/11 attacks on New York and Washington, and by attributing inappropriate motives to his employer. The Court concluded that these remarks could not be justified as coming within a Fraser exception to the duty of loyalty.
[22] In Haydon #2, public comments by Dr. Haydon relating to the allegedly political nature of a ban on Brazilian beef in the wake of concerns regarding bovine spongiform encephalopathy (or BSE, commonly known as “mad cow disease”), were found to relate to a trade dispute rather than a question of public health and safety. As a consequence, the comments were found not to come within a Fraser exception to the duty of loyalty.
[23] In the wake of all of this, it is hardly surprising that by the early 2000s, there was significant inter-personal conflict between Drs. Chopra and Haydon and some of their co‑workers and supervisors at Health Canada. This led to 16 of the applicants’ co-workers bringing a harassment complaint against Drs. Chopra and Haydon in December of 2002. Also named as respondents to the complaint were Dr. Gérard Lambert (a co-worker who shared the applicants’ views) and a fourth scientist. The harassment complaint alleged that as a result of the attention brought on by the applicants’ comments in the media, the complainants’ workloads increased, they did not wish to “[b]e distracted or dragged into this imbroglio,” and that the media reports put their “[j]obs and professional integrity to disrepute.”: Adjudicator’s decision at para. 62.
[24] A second complaint was filed against Dr. Chopra by the same co-workers in April of 2003 as a result of comments that he had made to the media regarding official bilingualism.
[25] An independent investigation into the complaints against Drs. Chopra and Haydon concluded that there had been no harassment. The 2004 investigation report (the Chodos Report) was, however, very critical of the applicants’ behaviour, noting that “[i]t may well be argued that by contributing to a climate of hostility and suspicion in their workplace [Drs. Chopra and Haydon] have in fact harmed the public interest, rather than promoting it”: Adjudicator’s decision at para. 68.
[26] The Chodos Report further found that Drs. Chopra and Haydon “have to take some responsibility for the climate of suspicion and distrust that has permeated the Directorate for a number of years ... These suspicions, whether warranted or not, undermine the spirit of collegiality that is necessary in order for VDD scientists to work cooperatively to fulfill their mandate under the Food and Drugs Act”: Adjudicator’s decision at para. 62.
[27] In 2003, the applicants and Dr. Lambert filed their own harassment complaint in which they alleged that “they had been subjected to ‘... intense political influence, pressure and harassment by Health Canada management to pass or maintain a variety of drugs of questionable safety to favour the political lobbying of certain special interest groups and to the detriment of the public interest’”: Adjudicator’s decision at para. 61. They identified unfair performance appraisals as one method of reprisal taken against them by their employer for making their views known.
[28] These events resulted in what the Chodos Report called a “climate of hostility and suspicion at the workplace” and what the Adjudicator called an “unpleasant” workplace. I do not understand either side to take issue with this characterization of the atmosphere within the VDD at this time, although each blames the other side for creating this toxic environment.
[29] With this overview of the background to the events at issue, I turn now to examine Dr. Chopra’s application for judicial review with respect to his 10-day suspension.
III. Dr. Chopra’s 10-Day Suspension
[30] On May 30, 2003, Dr. Chopra was suspended for 10 days for insubordination and for being on unauthorized leave. The adjudicator concluded that Health Canada had just cause to impose discipline on Dr. Chopra, and that the 10-day suspension was appropriate in the circumstances. As a consequence, he dismissed Dr. Chopra’s grievance.
A. The Circumstances Giving Rise to the Discipline
[31] During the time in question, Health Canada had a Flexible Work Arrangements Guide which allowed employees to work from home with the agreement of the Department, and at the discretion of management. In accordance with this policy, Dr. Chopra worked from his home under a succession of telework agreements from 1997 until 2002.
[32] On October 25, 2002, Dr. Chopra signed what would be the final extension to his telework agreement extending the arrangement until December 31, 2002. This extension agreement provided that:
a. The telework arrangement was to be for a 4 month period commencing on September 1, 2002;
b. Subject to satisfactory performance on the part of Dr. Chopra, the agreement could be extended for a further four month period;
c. Dr. Chopra acknowledged that “tele-working is a privilege & not a right & that the continuation of the arrangement if accepted is based on [his] productivity & performance.”
d. Telework is voluntary and may be terminated by either party with reasonable notice.
[33] On January 30, 2003, a meeting was held between Dr. Chopra, his Team Leader, Dr. Mehrotra, and the Director of the Human Safety Division at the VDD, Dr. Vasu Dev Sharma. The purpose of this meeting was to discuss Dr. Chopra’s performance.
[34] Deficiencies in Dr. Chopra’s performance were identified by his managers in the course of this meeting, specifically in relation to his level of productivity and his alleged lack of interest in the work assigned to him.
[35] At the end of the meeting, Dr. Sharma advised Dr. Chopra that because of his poor performance, his telework agreement was not going to be renewed. Dr. Chopra does not agree with the assessment of his performance and he asserts that he had no opportunity to address the employer’s concerns before the decision was made to cancel his telework arrangement.
[36] However, the cancellation of Dr. Chopra’s telework agreement, the validity of his January 2003 performance appraisal, and the merits of the grievance that followed are not at issue in this proceeding, with the result that I make no finding in this regard. I have, however, had regard to Dr. Chopra’s views of these matters as forming part of the context for the events that followed.
[37] The cancellation of Dr. Chopra’s telework agreement was confirmed by an email from Dr. Mehrotra to Dr. Chopra on January 31, 2003. This email instructed Dr. Chopra to report for work at the Holland Cross offices of the VDD on February 3, 2003. Dr. Chopra was further advised that he was expected to be “on location” between the hours of 7:00 am and 9:00 am, and to remain at work for the duration of the standard 7.5 hour working day from Monday to Friday of each week. Dr. Chopra reported to work on February 3, 2003, as instructed.
[38] Because the sequence of events between Dr. Chopra’s return to work and his suspension for insubordination are in issue, it is important to review those events in some detail. In particular, regard must be had to these events in light of Dr. Chopra’s contention that the Adjudicator erred in failing to explicitly find that he intended to be insubordinate and his claim that, as a result of the ongoing discussions between himself and his employer, Health Canada condoned his continued absence from the workplace.
[39] Dr. Chopra testified that he had an interaction with Dr. Aspi Maneckjee on his first day back at work which caused him to leave the workplace. Dr. Maneckjee was one of the 16 complainants in the harassment complaint against Drs. Chopra and Haydon.
[40] Dr. Maneckjee had previously sent Dr. Chopra an email in which he referred to comments made in the media by Dr. Chopra, asking him not to “make general statements when you have no definite proof, as you are hurting people (me).” Dr. Chopra responded that the accusation was “completely baseless and false”, stating that he did not wish to have any further discussion about the matter.
[41] According to Dr. Chopra, Dr. Maneckjee spoke to Dr. Chopra in the staff lunchroom on February 3, 2003. According to an email sent by Dr. Chopra to his union representative later that day, Dr. Maneckjee said “Shiv, you don't talk to me”. When Dr. Chopra did not respond, Dr. Maneckjee repeated, “Shiv, you don't talk to me”, to which Dr. Chopra replied “Do I need to?”
[42] Dr. Maneckjee then allegedly responded in a patronizing tone stating “You must always talk to people.” Dr. Chopra replied that “because you have filed a harassment complaint against me I do not wish to talk to you”. Dr. Chopra says that he “quickly cut the conversation short and requested him not to talk to me any further”. At this point Dr. Maneckjee left the room.
[43] Dr. Chopra testified at the hearing before the Adjudicator that this incident caused him to have serious concerns for his personal safety and security. Not only was he concerned that his co-workers could become “more aggressive” with him, he says that he was also concerned about how he was going to react to them.
[44] Dr. Chopra describes this as an incident of “workplace violence” or “threat” in his memorandum of fact and law, and he testified that “this is the incident that is now the ultimate of that aggression coming from that side. I cannot predict whether he’s going to hit me and - or hurt me but he’s told me that I’m hurting him”. It is interesting to note, however, that Dr. Chopra’s description of the event in his contemporaneous email to his union representative is far less dramatic, and there is no suggestion in that email that Dr. Chopra felt threatened in any way.
[45] Dr. Chopra testified that he returned to his desk after the incident with Dr. Maneckjee and called his doctor. He then left the workplace to see the doctor. Dr. Chopra did not advise anyone of his departure, nor did he report the incident to his supervisors at this time.
[46] Dr. Chopra described his discussion with his doctor on the afternoon of February 3, 2003, noting that the doctor told him that he “was not sick”, nor was he “psychiatrically ill”. It appears from Dr. Chopra’s description of the appointment that he wanted the doctor to document that he had reported a problem at work, and to have the doctor refer him to a psychologist.
[47] Dr. Chopra called the HSD secretary the following day, advising her that he was ill and would not be coming to the office. He did not contact either Dr. Mehrotra or Dr. Sharma. He spoke to the secretary again on February 7, 2003, stating that he was still unwell and that he would be seeing his doctor again.
[48] On February 10, 2003, Dr. Mehrotra emailed Dr. Chopra acknowledging that he had been away from work on account of illness and enquiring as to his current status and when he expected to return to work. Dr. Chopra responded that he had seen his doctor and that he would let Dr. Mehrotra know when he was well enough to return to work.
[49] Dr. Chopra’s supervisors heard nothing further from Dr. Chopra. As a result, Dr. Mehrotra emailed him again on March 5, 2003 stating “[i]n order to consider your request for sick leave with pay, I would request that you provide me with a certificate from your doctor which also indicates the expected date of return to duty.” Dr. Chopra was asked to provide the medical certificate by March 12, 2003.
[50] Dr. Chopra responded to Dr. Mehrotra’s email on March 12, 2003, stating that he would not be providing the requested medical certificate. Instead Dr. Chopra asked Dr. Mehrotra to contact his legal counsel, David Yazbeck.
[51] In the meantime, Mr. Yazbeck had been in communication with the Deputy Minister of Health, expressing concerns with respect to Drs. Chopra and Haydon and two co-workers. Mr. Yazbeck identified matters that he said represented a “... clear attempt by Health Canada management” to deliberately target four scientists, including Drs. Chopra and Haydon, to dissuade them from expressing their views. Mr. Yazbeck identified the negative performance appraisals for the four scientists, the cancellation of Dr. Chopra's telework arrangement, and the harassment complaint filed against the four by their colleagues as retaliatory measures.
[52] Mr. Yazbeck further stated in his letter to the Deputy Minister that he did not understand why Dr. Chopra “... would be compelled to return to work,” given the harassment complaint and the hostile attitude of his colleagues. Mr. Yazbeck urged the Deputy Minister to direct managers to “restore the status quo” until these issues could be addressed. At a minimum, Mr. Yazbeck asked that Dr. Chopra’s telework arrangement be restored and that the performance appraisals for all four scientists be rescinded.
[53] At the same time, Mr. Yazbeck was in communication with the Assistant Deputy Minister with respect to the harassment complaint against the four scientists. There was also communication between Dr. V. Sharma and Dr. Chopra with respect to the finalization of Dr. Chopra’s performance appraisal in which Dr. Sharma noted that despite Dr. Chopra’s views as to the validity of the appraisal, he should nevertheless be aware that he was “... required to undertake and complete work that has been assigned to [him].”
[54] Grievances were subsequently filed by Dr. Chopra with respect to both his performance appraisal and the cancellation of his telework agreement. In response to further correspondence from Mr. Yazbeck asking whether she intended to address his concerns with respect to the cancellation of Dr. Chopra’s telework arrangement, the Assistant Deputy Minister noted that these matters were the subject of grievances and that his concerns would be addressed through the grievance process.
[55] There were also discussions between the parties with respect to Dr. Chopra’s ongoing failure to produce a medical certificate to justify his absence from work. On March 18, 2003, Dr. Mehrotra repeated her request for a medical certificate, asking that it be provided by March 25, 2003. She advised Dr. Chopra that failing to provide the certificate would lead her to conclude that he was on unauthorized leave, which could result in disciplinary action.
[56] Dr. Chopra did not want to provide the certificate to Dr. Mehrotra, as she was one of the complainants in the harassment complaint against him and he believed that it would only be used against him. He advised Dr. Mehrotra that her request for a medical certificate was contrary to the harassment policy, referring her to Mr. Yazbeck. Dr. Chopra also advised Dr. Mehrotra that he would continue to work as best he could on the drug evaluation assigned to him.
[57] Ms. Diane Kirkpatrick was the Director General of the VDD at this time. She wrote to Mr. Yazbeck on March 27, 2003, regarding the separation of the complainants from the respondents to the harassment complaint. She advised that, as of March 31, 2003, Dr. Chopra’s office would be moved to an alternate location within the same office complex.
[58] There was further correspondence regarding these arrangements, with Ms. Kirkpatrick reiterating that, in the meantime, Dr. Chopra was expected to report for work at his current work location.
[59] On March 28, 2003, Ms. Kirkpatrick emailed Dr. Chopra, setting up a meeting for April 4, 2003 to discuss his absence from the workplace. In addition to the issue of the missing medical certificate, Ms. Kirkpatrick indicated that she wished to discuss Dr. Chopra’s comment that he was continuing to work from home, given that his telework arrangement had been discontinued.
[60] Ms. Kirkpatrick, Dr. V. Sharma, Dr. Chopra, Mr. Yazbeck and a human resources advisor attended the April 4, 2003 meeting. For the first time, Dr. Chopra told his employer about his February 3, 2003 encounter with Dr. Maneckjee. While he asserted that he had a health and safety concern, Dr. Chopra did not provide his employer with any details about the incident.
[61] Ms. Kirkpatrick told Dr. Chopra that he could provide his medical certificate to Dr. Sharma or to her. She also noted Dr. Chopra’s comment that he was working from home, asking him when he expected return to work from sick leave. Dr. Chopra advised Ms. Kirkpatrick that he still considered himself to be on telework. Ms. Kirkpatrick once again reminded Dr. Chopra that his telework arrangement was over, and that he was expected to work at the VDD site.
[62] An April 9, 2003 follow-up letter from the Assistant Deputy Minister reiterated the request for an expected return to work date, and again reminded Dr. Chopra that unless he was on authorized leave, he was “required to perform his duties at his designated workplace”.
[63] On April 17, 2003, Dr. Chopra provided Ms. Kirkpatrick with a medical certificate for his absence from the workplace from February 4, 2003 to March 15, 2003. The certificate was provided through Mr. Yazbeck, who wrote in a covering letter that “the decision to order Dr. Chopra” to perform his duties at a location other than his home constituted further harassment against him. While Ms. Kirkpatrick had some concerns about the legitimacy of Dr. Chopra’s illness, she accepted the certificate and approved his sick leave for the period ending March 15, 2003.
[64] There was further correspondence between the parties which included a discussion about the relocation of Dr. Chopra’s office. On May 12, 2003, Mr. Yazbeck wrote to Ms. Kirkpatrick again raising concerns with respect to “the decision to require [Dr. Chopra] to work in another workplace”, which he advised was viewed as a further incident of harassment. Mr. Yazbeck’s letter closed by informing Ms. Kirkpatrick that unless his client’s various concerns were addressed, Dr. Chopra would continue to work from home, absent a specific direction that Dr. Chopra move to his new office location.
[65] Mr. Yazbeck continued to raise concerns with respect to the cancellation of Dr. Chopra’s telework arrangement, leading the Assistant Deputy Minister to advise Mr. Yazbeck on April 30, 2003 that the decision to cancel the telework agreement “was taken at the appropriate level of delegation within the Department”.
[66] Throughout this period, and despite the fact that Dr. Chopra was not on sick leave after March 15, 2003, he still did not return to the workplace.
[67] On May 30, 2003, Ms. Kirkpatrick wrote to Dr. Chopra imposing the 10-day suspension that underlies this application for judicial review. She also indicated that action would be taken to recover Dr. Chopra’s salary for the period when he had been absent from work. Ms. Kirkpatrick’s letter reads, in part:
I conclude that you have been on unauthorized leave from the workplace since March 16, 2003. As a result, action will now be taken to recover salary from your pay account from March 16, 2003, until you report to duty at your designated workplace.
Furthermore, your continued unauthorized absence from the workplace, your insistence that you remain on telework contrary to repeated management instructions, your failure to provide in a timely manner, notwithstanding repeated requests, a medical certificate or any other justification for your absence and your failure to provide in a timely manner, again despite repeated requests, any information relating to your allegation with respect to safety and security, constitutes, in my view, insubordination and unacceptable conduct on your part.
Accordingly, I am left with no alternative but to suspend you from work without pay for a period of ten days. You will be notified of the specific dates as to when this suspension will be served.
You are required to report for duty immediately. Failure to report to work could lead to further disciplinary action up to and including termination of employment.
[68] Following receipt of this letter, Dr. Chopra returned to work, as instructed, on June 3, 2003.
B. The Adjudicator’s Decision
[69] An adjudicator was appointed under the provisions of the Public Service Staff Relations Act to deal with Drs. Chopra and Haydon’s grievances.
[70] After reviewing the various interactions between Dr. Chopra, Mr. Yazbeck and Health Canada, the Adjudicator made a number of findings with respect to Dr. Chopra’s absence from work between February 3 and May 30, 2003.
[71] The Adjudicator was prepared to give Dr. Chopra the benefit of the doubt with respect to his explanation for refusing to provide a medical certificate until April of 2003. However, the Adjudicator also found that Dr. Chopra’s concerns about workplace violence and harassment did not result in a “retrospective exception to the ‘obey now, grieve later’ principle” and were not sufficient to justify him acting in the way he did.
[72] In particular, the Adjudicator found that Dr. Chopra had insisted on working from home despite the non-renewal of his telework agreement and his employer’s clear instructions that he was to report for duty at his designated work location.
[73] The Adjudicator further found that Dr. Chopra had no legitimate excuse for disobeying the order to return to the workplace, that his absence from work after March 15, 2003 was unauthorized, and that he had engaged in unacceptable conduct constituting insubordination. As a consequence, Health Canada had just cause to impose discipline and the ten-day suspension was reasonable in light of Dr. Chopra’s past disciplinary record.
[74] Finally, the Adjudicator concluded that based on the principle of “no work, no pay”, the recovery of salary for the period when Dr. Chopra was absent from the workplace was an administrative action and not a disciplinary one. Dr. Chopra has not challenged this aspect of the Adjudicator’s decision.
C. The Issues
[75] The global issue raised by this application is whether the Adjudicator’s decision to uphold the 10-day suspension was reasonable. Dr. Chopra argues that it was not as the Adjudicator failed to address crucial issues, and the evidence in the record did not establish all of the necessary elements to support a finding of insubordination.
[76] In support of this contention, Dr. Chopra identifies four questions that he says the Adjudicator failed to address. These are:
a. Whether Dr. Chopra knew he was disobeying a clear and direct order;
b. Whether Health Canada condoned Dr. Chopra’s absence from the workplace, given its failure to insist that he return to work at an earlier point in time;
c. Whether Health Canada was entitled to discipline Dr. Chopra in circumstances where he genuinely feared for his health and safety; and
d. Whether the employer proved all the allegations relied upon to support the discipline in question.
D. Analysis
[77] The parties agree that the standard of review to be applied to the Adjudicator’s decision is that of reasonableness. I agree. Although the application does raise questions of mixed fact and law, the resolution of these questions largely depends upon the Adjudicator’s appreciation of the facts.
[78] In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[79] Reasonableness is a deferential standard. It recognizes that there may not be a single correct answer to issues in dispute and further recognizes that Parliament assigns primary decision-making responsibility to specialist tribunals because of their particular expertise in the subject area. As a consequence, reasonableness review requires an attitude of respect for the decisions of specialist administrative tribunals by reviewing courts: Dunsmuir, at para. 48.
[80] This is particularly true in the labour arbitration context. Indeed, as the Federal Court of Appeal observed in Tobin v. Canada (Attorney General), 2009 FCA 254, [2009] F.C.J. No. 968, an adjudicator appointed under the Public Service Staff Relations Act is “not simply an expert in labour relations but an expert in public service labour relations”: at para. 40.
[81] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court provided further clarification as to the scope of reasonableness revi