Andruszkiewicz v. Canada (Attorney General)

Andruszkiewicz v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-04-12
Neutral citation
2023 FC 528
File numbers
T-28-22
Decision Content
Date: 20230412
Docket: T-28-22
Citation: 2023 FC 528
Ottawa, Ontario, April 12, 2023
PRESENT: Justice Andrew D. Little
BETWEEN:
VALERIE ANDRUSZKIEWICZ
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The applicant, Ms Andruszkiewicz, applied for judicial review of a final level grievance decision by the Canada Border Services Agency (the “CBSA”) dated August 17, 2020.
[2] Ms Andruszkiewicz raises issues of procedural unfairness and whether the CBSA decision was unreasonable based on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[3] For the following reasons, the application is dismissed. The applicant has not shown that she was deprived of procedural fairness in either the grievance process or the harassment investigation, and has not demonstrated the final level grievance decision was unreasonable.
I. Events Leading to this Application A. The applicant [4] The applicant was employed by the CBSA starting in 1992. As of May 2012, she served as a Supervisor at CBSA’s National Targeting Centre in Ottawa.
[5] Ms Andruszkiewicz represented herself in this application.
B. Harassment Complaints and Investigation [6] In June 2018, the applicant filed a harassment complaint against members of CBSA management, namely a Manager, Director and Director General. By letter dated June 8, 2018, the applicant’s legal counsel sent the complaint dated June 1, 2018, to CBSA. The complaint described numerous allegations against the Manager and Director. The applicant claimed that certain incidents had been brought to the attention of the Director General, but resulted in no action.
[7] Also in June 2018, the applicant filed a separate complaint against the Director General. It related to email communications with her about a return to work, sent while she was on long term disability. By letter dated July 9, 2018, the applicant’s then-legal counsel set out her position about her complaint against the Director General. By undated letter in response, which I understand was sent in approximately mid-August 2018, CBSA’s Vice President, Operations Branch, advised that the allegations did not fall within the definition of harassment and therefore would not be investigated further.
[8] In late August 2018, Robert Neron of Simner Corporation agreed to serve as an external investigator for the first complaint. The written mandate for the investigation was settled in November 2018.
[9] The investigator interviewed the applicant on December 14, 2018. The interview identified nine events and incidents that would be the subject of investigation. During that interview, the applicant and her counsel confirmed that the Director General was no longer a respondent in the complaint but remained an “important actor” in it. By letter dated December 21, 2018, the investigator advised CBSA that the Director General was no longer a respondent to the applicant’s complaint but remained an important actor.
[10] The investigator proceeded to interview the applicant, six other persons who worked at CBSA, as well as the respondent Manager and respondent Director.
[11] The harassment complaints against the Manager and the Director resulted in two Investigation Reports dated June 16, 2019, and June 26, 2019. The Investigation Reports both concluded that the applicant’s complaints were unfounded. The investigation found that certain workplace relationships were strained and at times uncivil, but the Manager’s and Director’s respective conduct did not constitute harassment of the applicant.
[12] CBSA, as the employer, accepted the Investigation Reports and sent decision letters to the applicant dated August 12, 2019 and September 10, 2019 respectively. Those letters confirmed that the employer, having thoroughly reviewed the investigator’s findings, supported those findings and accepted that the applicant’s allegations were unfounded.
C. The Applicant’s Grievance [13] On October 8, 2019, the applicant filed a grievance “regarding harassment complaint 2018-NHQ-HC-127410” which was the complaint against the Manager and Director. In her grievance, the applicant stated:
I grieve that Canada Border Services Agency (CBSA) were non-compliant with the Treasury Board Secretariat Policies and Directives on Harassment Prevention and Resolution and the Harassment Complaint Process.
I grieve that CBSA engaged the services of an external investigator that was non-compliant with the Investigation Guide for the Policy on Harassment Prevention and Resolution and Directive on the Harassment Complaint Process.
I grieve that evidence provided by myself, including documentation, witnesses, interview and rebuttals to this investigation were not considered in the final decisions of this investigation.
I grieve that the findings reported by the investigator were unprofessional and biased.
I grieve that this entire harassment process was mismanaged by CBSA towards myself. I was treated in an unfair manner that deprived me of my pay, my leave, my full mental/physical health and my work reputation.
[14] The applicant requested the following recourse: compensation for lost salary, including holiday, overtime and shift differential pay; a return of her leave used since 2016 when the harassment began; and “an independent, non-commissioned employee of the federal government that will review the findings in their deserved totality”.
[15] On January 8, 2020, the applicant met with a Senior Labour Relations Advisor for a consultation about her grievance.
[16] On January 22, 2020, the applicant sent the Senior Labour Relations Advisor a six-page document setting out her grievance allegations in detail and attaching many documents.
[17] The Senior Labour Relations Advisor prepared a Final Level Grievance Précis (the “Précis”) and a proposed reply to grievance which were provided for the delegated authority’s (decision maker’s) consideration. Both were not dated.
II. CBSA’s Final Level Decision
[18] The final level decision maker (CBSA’s Vice-President, Human Resources) rendered a written Reply to Grievance (Final Level) dated August 17, 2020 (the “Reply to Grievance”). The decision maker confirmed having reviewed the circumstances giving rise to the applicant’s grievance and that she had taken into account the applicant’s points raised at the final level consultation.
[19] The Reply to Grievance stated in part:
Following the submission of your allegations, formal harassment investigations were launched against two of the respondents you had identified. Allegations against the third respondent were not investigated as they did not fall within the definition of harassment as defined by the Treasury Board’s Secretariat’s directive governing the harassment complaint process.
The investigations, led by an impartial external manager, both concluded that the allegations raised in your complaints did not meet the definition of harassment and thus, were unfounded. After a review of the entire process, I am confident that it was undertaken in accordance with the relevant Treasury Board Secretariat harassment directives and policies and see no reason to intervene.
In view of the foregoing, your grievance is hereby denied. The corrective actions you have requested will not be forthcoming.
[20] The applicant seeks judicial review of the Final Level Decision. Before analyzing her position, I will address certain preliminary issues.
III. The Applicant’s Motions
A. Motion to Adduce New Evidence [21] Shortly before the hearing of this judicial review application on October 6, 2022, the applicant filed a notice of motion on September 28, 2022, seeking leave to adduce additional evidence under Rule 312 of the Federal Courts Rules. The applicant advised that the additional documentation was minimal and did not include new allegations, but were necessary to respond to points raised in the respondent’s record, which was filed on July 22, 2022.
[22] The applicant first advised that she required an amendment to her original affidavit, to clarify that she relied on an additional part in the Treasury Board Directive on the Harassment Complaint Process (in particular, Step 5 found in paragraphs 6.1.1 and 6.1.2). The respondent did not oppose this point. No Order is needed. I will consider it below.
[23] Second, the applicant requested that the record be supplemented to contain the following new materials:
a)a letter sent by CBSA to the Federal Public Service Sector Labour Relations and Employment Board;
b)email communications in January 2020 between the applicant and the Senior Labour Relations Advisor (although the email attached to the applicant’s reply filed on October 4, 2022, bears a date in December 2019);
c)two medical letters dated September 21, 2022 and September 29, 2022; and
d)one or two additional pages of a “rebuttal report”prepared by the applicant during the investigation and an email from October 2017 between the applicant and the Director General.
[24] The respondent opposed the admission of these documents because they did not meet the criteria for admission under Rule 312 set out in Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 and Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128. The respondent argued that the documents listed immediately above in paragraphs a), c) and d) were not before the decision-maker at the time of the impugned decision (citing Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at para 19, and Bernard v Canada (Revenue Agency), 2015 FCA 263, at paras 13-18). The respondent further argued that the Court should not exercise its discretion to admit the applicant’s email communications in paragraph b) above because it was too late for the respondent to provide meaningful evidence in response.
[25] The applicant filed reply submissions on October 4, 2022, attaching most of the documents at issue and describing further why the additional documents should be admitted, principally because the documents served only to support her existing evidence and position.
[26] During the hearing, the applicant acknowledged the general principle that only materials that were before the decision maker are admissible on this judicial review application.
[27] The test for admission of new evidence under Rule 312 of the Federal Courts Rules starts with a determination of whether the evidence is admissible on the application for judicial review and whether the evidence is relevant to an issue properly before the Court: Forest Ethics, at paras 4 and 6. Under Rule 312, the Court will also have regard to whether it is in the “interests of justice” to admit the new evidence, including whether it (i) will assist the Court, (ii) will cause substantial or serious prejudice to the respondent, and (iii) was available when the applicant filed the materials for the judicial review application or could have been discovered with the exercise of due diligence: Tsleil-Waututh Nation, at para 11. See also McClintock's Ski School & Pro Shop Inc. v Canada (Attorney General), 2021 FC 471, at paras 38-39. In considering whether the evidence will assist the Court, the evidence must be sufficiently probative that it could affect the result: Holy Alpha and Omega Church of Toronto v Canada (Attorney General), 2009 FCA 101, at paras 2 and 11.
[28] Applying these legal principles:
a)the letter sent by CBSA to the Federal Public Service Sector Labour Relations and Employment Board is not admissible. It was included to show CBSA’s “unconcerned” attitude when she requested a medical accommodation and to support the applicant’s position of a pattern of procedural unfairness and unprofessionalism Only one undated page of the letter was provided with the motion materials. The proposed new evidence could not materially affect the outcome of this application;
b)the email communications on December 18, 2019 between the applicant and the Senior Labour Relations Advisor during the grievance is admissible as it is relevant to a procedural fairness argument made by the applicant related to the grievance process;
c)the two medical letters dated in September 2022 were tendered to show the mental and physical impact of the harassment complaint on the applicant’s life and to support her position that CBSA failed to provide her with medical accommodation on her return to work. However, the reprisal allegation made in the applicant’s grievance related to communications in October 2019 concerning her return to work at that time, and did not raise an issue of medical accommodation. The 2022 letters are not admissible as they were not before the decision maker and are not relevant to any proper submission on this application related to the original reprisal allegation;
d)the one or two additional pages of the applicant’s “rebuttal report” prepared by the applicant during the investigation could be relevant depending on their contents, but they were not provided on the motion. The applicant provided an excerpt from her email exchange with the Director General on October 17, 2019, which related to her concerns about a comment related to her performance; the Director General responded that a meeting with be set up to address her concerns. However, the email could have been provided in her grievance with reasonable diligence, along with all the other documents provided to the Senior Labour Relations Advisor. It is unclear how it could affect the outcome of this application.
[29] The applicant’s motion is allowed in part, so that she may make her complete argument concerning Step 5 and to admit the email communications on December 18, 2019, between the applicant and the Senior Labour Relations Advisor.
B. Motion to Submit Post-Hearing Submissions [30] After the hearing in this Court, the applicant filed a motion seeking leave to file her 55-page “court statement”, read at the hearing. The applicant advised that she had been unable to read it completely during her argument. The applicant again referred to Rule 312 concerning the admission of new evidence. The applicant’s position was that the oral hearing was scheduled for four hours and she had not been able to speak about the standard of review, which had been raised in the respondent’s record. She argued that the respondent and the Court had already heard a majority of the statements, nothing in it had been altered after the hearing and the respondent would suffer no prejudice.
[31] The respondent opposed the proposed filing, on the grounds that the applicant had not met the legal test for accepting new evidence and the Court should not exercise its discretion to receive it.
[32] In my view, the question for this motion does not concern additional evidence to add to the record on this judicial review; it is about additional submissions (argument) after the hearing. The answer is that there was no need for additional legal submissions after the hearing. Both parties had an opportunity to make written submissions beforehand and during the hearing and did so. Both parties knew that the hearing was scheduled for four hours, which implied that each party had approximately two hours to make their submissions. The hearing in fact went about five hours; the applicant’s submissions occupied nearly three hours and the respondent’s about 1.75 hours, before the applicant’s brief reply. No additional submissions were requested or required from the parties. The respondent should not be required to respond in writing to the applicant’s court statement (having had an opportunity to respond orally at the hearing). I also reviewed the court statement and determined that its contents concerning the standard of review related to Vavilov principles, which are well known to the Court.
[33] Accordingly, the applicant’s motion to file her “court statement” will be dismissed, without costs.
IV. Analysis of the Application for Judicial Review
[34] At the outset of the legal analysis, it is important to emphasize what is at issue in this judicial review application. The decision under review is the CBSA’s Final Level Decision dated August 17, 2020, in the applicant’s grievance commenced on October 7, 2019. This application does not review the reasonableness of the decisions to accept the results of the two Investigation Reports, or the substantive contents of those two reports.
[35] This proceeding also does not determine whether the applicant’s harassment complaints were valid or not. Further, the Court cannot determine whether the final level decision maker, or the investigator into the harassment complaints, rendered decisions about the harassment complaints that were correct on the evidence.
[36] The applicant’s grievance allegations were divided into three broad areas:
a)the investigation was “non-compliant” or did not properly apply the requirements in certain polices and guides published in relation to harassment and the harassment investigation process. The applicant also argued that the investigator was not impartial or was biased;
b)there was “gross mismanagement” of the harassment investigation; and
c)there was misconduct by senior CBSA officials.
[37] The particulars and specific issues arising in the three areas overlapped considerably and were in substance closely related. I say so based on my review of the particulars and issues provided by the applicant to the Senior Labour Relations Advisor during the consultation with the applicant on January 8, 2019, and in her written position provided on January 22, 2020, and my review of the applicant’s written and oral submissions to the Court in this proceeding.
[38] In this application, the applicant argued that the Final Level Decision should be set aside because CBSA did not adhere to the principles of procedural fairness and the Final Level Decision was not reasonable. The applicant’s arguments about CBSA’s conduct, in both the grievance and the Court, focused on the process used during the harassment investigation, arguing that it did not meet certain requirements established in Treasury Board documents.
A. Reasons for the Impugned Final Level Decision [39] The reasons for the Final Level Decision in the applicant’s grievance include what was stated in the Reply to Grievance itself and the contents of the Précis: Veillette v Canada (Revenue Agency), 2020 FC 544, at para 27.
[40] The respondent submitted that, in law, the two Investigation Reports also formed part of the reasons for the impugned decision (citing Marszowski v Canada (Attorney General), 2015 FC 271, at para 49; Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392, at paras 36-39). The respondent submitted that, once accepted, the Investigation Reports became an extension of the agency for which they were prepared and the delegated authority therefore accepted all of their findings. The respondent noted that in this case, the applicant received the two reports, the decision maker had those reports before her when the Final Level Decision was made, and the grievance concerned those reports and the process used to reach their conclusions.
[41] In Marszowski, Justice Heneghan stated at paragraph 49:
Investigation reports are considered an extension of the agency for which they are prepared; see the decision in Sketchley, supra. Investigation reports can be considered part of the final decision where the decision references the report; see the decision in Westbrook v. Canada Revenue Agency, 2013 FC 951 at paragraph 13.
[42] In Westbrook v. Canada (National Revenue), 2013 FC 951, Justice Manson stated at paragraph 13:
It is not the Court’s role to conduct an in-depth analysis of the record to justify the reasons underlying the Agency’s decision. That being said, the record here is relatively clear in showing how the Agency arrived at its decision. The initial decision of January 27, 2010, references the Investigator’s report and provides a summary of conclusions reached on the evidence. The final decision by the Agency on June 10, 2012, likewise references the Investigator’s report. One is not left to guess at the reasons; they are articulated in the January 27, 2010 letter, and supported by the Investigator’s report. In the instant application, it is reasonable to treat the Investigator’s report and the initial decision as part of the final decision. To sever the final decision from these components would be artificial and contrary to the deference accorded to administrative decision-makers on the reasonableness standard.
[43] In Sketchley, the Federal Court of Appeal found that if the Canadian Human Rights Commission adopted an investigator’s report and provided no reasons or only brief reasons, the courts had considered the investigator’s report as constituting the Commission’s reasoning for the purposes of a screening decision: Sketchley, at para 37. The Federal Court of Appeal noted that the reviewing Court’s decision ultimately remains focused on the screening decision: Sketchley, at para 38. See similarly, Ralph v Canada (Attorney General), 2010 FCA 257, at para 16.
[44] In this case, CBSA accepted the Investigator’s Reports and supported their findings in its letters dated August 12, 2019, and September 10, 2019. The central subject matter of the applicant’s grievance was the harassment investigations. The Reply to Grievance and the Précis both referred to the two investigations and their outcomes. The Précis stated that the grievance “contest[ed] the results of the harassment investigations and the way the process was handled by CBSA”. The Précis addressed both issues; on the first, it found that there was no evidence to support the allegation that the investigator was non-compliant with applicable Treasury Board policies governing harassment complaint investigations and no evidence that she was harassed in the workplace by either the Manager or the Director. In substance, the Reply to Grievance and the Précis adopted the Investigator’s Reports and found that the investigator’s process had followed the required rules, with one exception (the destruction of an interview recording).
[45] In the circumstances, I agree with the respondent that the Investigator’s Reports are better viewed as forming part of the reasons for the Final Level Decision, rather than as part of the record on which that decision was based. As in Westbrook, it would be artificial to do otherwise.
B. Was the Final Level Grievance Decision Unreasonable? [46] The standard of review of the Final Level Decision is reasonableness, as described in Vavilov. The onus is on the applicant to demonstrate that the decision is unreasonable: Vavilov, at paras 75 and 100.
[47] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision contains the attributes of transparency, intelligibility and justification: Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900, at paras 2, 28-33, 61.
[48] The Supreme Court in Vavilov, at paragraph 101, identified two types of fundamental flaws that may warrant intervention from a reviewing Court: a failure of rationality internal to the reasoning process in the decision; and when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.
[49] Absent “exceptional circumstances”, a reviewing court will not interfere with the decision maker’s factual findings and will not reweigh or reassess the evidence: Vavilov, at para 125. A reviewing court’s ability to intervene arises only if the reviewing court loses confidence in the decision because it was “untenable in light of the relevant factual … constraints” or if the decision maker “fundamentally misapprehended or failed to account for the evidence before it”: Vavilov, at paras 101, 126 and 194. See also Canada Post, at para 61.
[50] Not all errors or concerns about the decision under review will warrant the Court’s intervention. To intervene, the Court must find that the identified flaw(s) are more than superficial or peripheral to the merits of the decision, or a “minor misstep”. Rather, the problem must be sufficiently central or significant to render the decision unreasonable – there must be “sufficiently serious shortcomings” in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency: Vavilov, at para 100.
[51] For the reasons that follow, I have concluded that the applicant has not demonstrated that the Final Level Decision was unreasonable.
[52] While the applicant acknowledged the three hallmarks of reasonableness during her submissions at the hearing, her position was that the Final Level Grievance decision was unreasonable because it should have concluded that the underlying investigation was procedurally unfair and unreasonable because it did not follow certain Treasury Board documents related to harassment investigations and because it was conducted with numerous flaws. The applicant pointed to concerns about competence and sensitivity during the harassment investigation process.
[53] The applicant also sought to link her arguments to CBSA’s Code of Conduct and the Values and Ethics Code for the Public Sector, referring to principles of respect for democracy, respect for people, integrity, stewardship and excellence. In my view, it is preferable to analyze the applicant’s specific arguments in accordance with more concrete and established legal principles, including procedural fairness. See Burlacu v Canada (Attorney General), 2022 FCA 197, at paras 5-6.
[54] The applicant’s written submissions did not link her submissions about the underlying investigation with the contents of either the Reply to Grievance or the Précis, nor did her oral submissions until asked by the Court. In response to that question, the applicant referred to her submissions (which made some references to Investigations Reports) and argued that the Reply to Grievance and the Précis did not examine her concerns in detail and were “generic”, “dismissive” and “glossed over” her grievances. CBSA’s responses to her grievance did not alleviate her concerns about the investigation.
[55] The applicant argued that CBSA erred in law by failing to follow or apply certain (mostly process-oriented) contents of certain documents, namely:
a)Treasury Board Secretariat Policy on Harassment Prevention and Resolution (the “Policy”) (which has now been overtaken by the Directive).
b)Treasury Board Directive on the Harassment Complaint Process (also now overtaken by the Directive);
c)Treasury Board Secretariat Investigation Guide for the Policy on Harassment Prevention and Resolution and Directive on the Harassment Complaint Process (the “Guide”), which supported the Policy and the previous directive.
[56] The Reply to Grievance expressly concluded that the investigation was undertaken in accordance with the relevant Treasury Board Secretariat Harassment Directives and Policies.
[57] The Précis quoted the applicant’s statements in her original grievance, summarized her position and set out the employer’s position. The employer position section of the Précis considered the definition of harassment in the Treasury Board’s Policy. The Précis found that the applicant provided no evidence to support her allegation that the investigator was non-compliant with the Treasury Board Secretariat Policies governing harassment complaint investigations, that the investigator was found on Public Service and Procurement Canada’s list of available investigators, and the procurement process was followed. At a general level, the applicant has not demonstrated that these conclusions were not open to the decision maker in the Final Level Decision.
[58] The Précis found that no evidence was provided to support that the applicant was harassed in the workplace and noted that the formal investigations by the external investigator concluded that her allegations were unfounded and unsubstantiated. The Précis found that at most, there might be incivility and that there were tensions between the applicant and one of her manager or director in the workplace. The applicant, while disagreeing with the outcome, did not challenge this specific conclusion in the Précis during her submissions.
[59] With respect to the applicant’s allegation that the investigation process was flawed and incomplete because the Director General was not interviewed, the Précis noted that the Director General was not a witness to the allegations of harassment, nor was he a respondent. This conclusion was reasonably open to the decision maker on the record.
[60] The Précis addressed the Director General’s use of the applicant’s personal email address (the subject of the second complaint), finding that the communication was necessary to facilitate her return to work following sick leave and was in the within the scope of a manager’s roles and responsibilities. The Précis concluded that it did not contravene the CBSA Code of Conduct or the Privacy Act, RSC 1985, c. P-21, as alleged by the applicant. In this application, the applicant characterized the Director General’s email as insensitive. She noted that it referred to personal health information and was not encrypted, but did not otherwise elaborate on the CBSA Code of Conduct or the Privacy Act. Despite these concerns, I cannot conclude that the applicant has shown that the decision maker was constrained to reach a different conclusion than the one it did.
[61] The Précis concluded that a letter from the applicant’s counsel directing that communications be sent to him was only addressed to its recipient and therefore did not preclude the Director General from contacting the applicant concerning work-related issues outside of her harassment complaint. The Précis found that if that had been intended, her counsel’s letter should have stated so more clearly and it was unreasonable for the applicant to expect that the recipient would interpret the request as including any type of communication and to inform others. Reading that correspondence, I find that the conclusion was open to the decision maker.
[62] The Précis found no evidence to support the applicant’s allegation that the investigator did not accurately record the comments she made during her interview. The Précis noted that the applicant had the opportunity to review the investigator’s notes and make corrections as needed. The applicant did not contest these points.
[63] The Précis addressed in detail the destruction of the audio copy of the applicant’s interview. The Précis recognized that the Guide contemplated that use of video or audio recording devices was not advisable and that an investigator must be prepared to provide, upon request, copies of these transcripts which can be very costly and time-consuming. However, the Précis also noted that the investigator used the audio recordings only to help him write his notes, which were then reviewed by interviewees to confirm their accuracy. The applicant’s then-counsel confirmed that this approach made “abundant sense”. The Précis advised that certain follow-up actions would be taken. The Précis concluded that while the Guide discouraged the use of such recordings, and the investigator failed to provide transcripts on request, that did not mean that the investigator was incompetent or that the investigation was invalid. According to the Précis, the applicant was provided with the opportunity to review the investigator’s notes from their accuracy following the interview and her counsel conceded in writing that the reasons for destroying the recordings made sense. On the record, it was clearly open to the decision maker to reach these conclusions related to the applicant’s interview.
[64] Overall, it is true that that the Reply to Grievance and the Précis did not expressly address each and every one of the applicant’s specific allegations and points. There are several interrelated points that answer that concern. First, the reasons for the Final Level Decision included both those documents and, in this case, the two Investigation Reports which contained considerably more detail that is responsive to the applicant’s original complaints and to additional details articulated in her grievance. Second, the decision maker was required to consider all substantive issues raised in the applicant’s grievance and provide sufficient reasons to demonstrate that they had been considered. In substance, I find that the main or central points raised in the applicant’s grievance were addressed – the investigator’s compliance with applicable directives, policies and guides, and the alleged unfairness and mismanagement of the investigation process. In addition, the reasons for the Final Level Decision were not required to address each and every detailed argument or piece of evidence mentioned by the applicant: Vavilov at para 91; Caron v. Canada (Attorney General), 2022 FCA 196, at para 45.
[65] In addition, to the extent that the detailed issues raised by the applicant were not expressly analyzed by the decision maker and also relate to procedural fairness, they will be addressed below.
[66] For these reasons, I conclude that the applicant has not demonstrated that the Final Level Grievance Decision was unreasonable.
C. Reprisal Allegation made to the Senior Labour Relations Advisor [67] The applicant raised an allegation of reprisal in her written position statement sent to the investigator on January 22, 2020. The applicant referred to communications in late October 2019 (after she commenced the grievance) which she believed would have led to her returning to work at a new location and not resuming her former “substantive” position.
[68] As the respondent acknowledged at the hearing, the Reply to Grievance did not expressly address the applicant’s allegation of reprisal. The Précis did summarize her position, noting that the applicant had been trying to come back to work and it had been very difficult with local management. The Précis advised that the applicant felt that she was not being treated fairly, was getting no respect and that “they did not want her back”. This treatment was in reprisal for the harassment complaint she filed. The “employer position” portion of the Précis did not analyze this aspect of the applicant’s position on the grievance.
[69] The applicant’s submissions to the Court referred to many legal issues around reprisal; it appears that she made human rights and privacy complaints related to events and communications that would have led to her return to work (which I understand has not yet occurred). The applicant’s position in writing was that CBSA had violated several statutes in respect of her return to work. The submissions seemed to focus on CBSA’s alleged failure to provide her with medical accommodation (a concern not mentioned in the original reprisal allegation in on January 22, 2020).
[70] The respondent argued that the reprisal issues raised in the applicant’s written submissions were not properly before the Court and that that the applicant had an adequate alternative venue for these issues by making a complaint under the Federal Public Sector Labour Relations Act, SC 2003, c. 22, paragraphs 190(1)(g) and 186(2)(a)(iii). The respondent also referred to paragraphs 209(1)(b) and 209(1)(c)(iii), and subsection 228(2) of that statute and to subsection 51(6) of the Public Service Employment Act, SC 2003, c. 22.
[71] The applicant’s oral argument in response to the respondent’s position on the Federal Public Sector Labour Relations Act provisions was that reprisal was properly before the Court and that some of the provisions (related to discipline and deployment) did not relate to her harassment complaint.
[72] The reasons for the Final Level Decision are not assessed on a standard of perfection: Vavilov, at para 91. Indeed, in her submissions to the Court, the applicant did not argue that the original reprisal allegation, raised in the grievance consultation process on January 22, 2020, should be returned for determination or even identify that it had been summarized but not otherwise analyzed in the Final Level Decision. Considering the matters raised in the grievance as a whole, I conclude that the absence of an express analysis of the original reprisal allegation in the Final Level Decision does not raise a concern that is so fundamental to the applicant’s grievance or to the overall Final Level Decision, to warrant setting aside that decision: Vavilov, at paras 100, 127-128.
D. Alleged Procedural Unfairness [73] The applicant raised a number of issues related to alleged procedural unfairness. The applicant elaborated on these general points with submissions on specific issues, which I will address below.
(i) Legal Approach to Procedural Fairness Issues [74] If a procedural fairness question arises on an application for judicial review, the Court determines whether the procedure used by the decision maker was fair, having regard to all of the circumstances including the nature of the substantive rights involved and the consequences for the individual(s) affected. While technically no standard of review applies, the Court’s review exercise is akin to correctness: Hussey v Bell Mobility Inc, 2022 FCA 95, at para 24; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271, at para 35; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121, at paras 54-55.
[75] In other words, the Court must be satisfied the duty of procedural fairness was met: Rebello v Canada (Justice), 2023 FCA 67, at para 10; Koch v Borgatti Estate, 2022 FCA 201, at para 40 (citing Lipskaia v Canada (Attorney General), 2019 FCA 267, at para 14).
[76] One principle of procedural fairness is to “hear the other side” (sometimes known as the audi alteram partem principle). For that principle, the ultimate question for procedural fairness is whether the applicant knew the case to meet and had a meaningful opportunity to be heard – a “full and fair” chance to respond: Canadian Pacific Railway, at paras 41 and 56; Taseko Mines Limited v Canada (Environment), 2019 FCA 320, at para 50; Air Canada v Robinson, 2021 FCA 204, at paras 54, 66; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para 22.
[77] Below, I will consider the case law that implements these broad procedural fairness principles.
(ii) Fairness of the Process Leading to the Decision under Review [78] The respondent argued that the onus was on the applicant to make out her grievance claims on facts within her knowledge and that the requirements for procedural fairness in the grievance process were low – only to be advised of prejudicial facts. The respondent referred to Kohlenberg v Canada (Attorney General), 2022 FC 906 and Blois v Canada (Attorney General), 2018 FC 354.
[79] In Kohlenberg v Canada (Attorney General), 2022 FC 906, Justice Fothergill held, at paragraph 23:
The level of procedural fairness owed to an employee in an internal grievance process is at the low end of the spectrum (De Santis v Canada (Attorney General), 2020 FC 723 [De Santis] at para 28,