Digests

Therriault v. Canada (Department of Indian Affairs and Northern Development)

T-2085-01, T-2084-01

2003 FCT 439, Blais J.

16/4/03

22 p.

Two applications for judicial review of decisions by the Assistant Deputy Minister of Lands and Trust Services of Department of Indian Affairs and Northern Development dismissing, first, grievance number QUE-00-04, second, applicant's grievance number QUE-00-05--Grievances pursuant to complaint of harassment filed against applicant, manager, by employee, Ms. Picard--Complaint proved unfounded as to 19 of 20 allegations; applicant then sent letter of reprimand for having attacked credibility of complainant and insulting her--QUE-00-04 asked for disciplinary sanctions against persons at fault and compensatory damages; QUE-00-05 disputed letter of reprimand--Whether, in dismissing applicant's grievances, after they had been dismissed at first two levels, Assistant Deputy Minister so erred in law or in fact as to warrant intervention of Court-- First, regarding grievance QUE-00-04, analysis divided in two --First, was whether applicant denied right to hearing--After eight-month investigation, applicant given seven days in which to respond to report's finding of harassment--Both decision to accept conclusions of investigation report, made on June 22, 2000, and decision to issue letter of reprimand to applicant, on June 29, 2000, untimely, unreasonable in circumstances--Clear that lengthy investigation report containing detailed analysis of 20 allegations of harassment against applicant could readily justify postponement of meeting scheduled for June 21, 2000, in order to allow applicant to take stock of situation and request advice--Fact that her supervisor did not take account of applicant's special situation is flagrant breach of policy concerning rights of parties--Clear that applicant deprived of her right to hearing--Because he failed to consider this factor, Assistant Deputy Minister did so err as to justify intervention of Court--Second, whether Assistant Deputy Minister justified in concluding nothing in process or content of investigation to indicate that Ms. Picard's complaint improper or vexatious-- In view of fact that 19 of 20 allegations of harassment rejected and prejudicial impact of such accusations, Assistant Deputy Minister could have examined complaint more closely and determined whether it could be considered improper and vexatious--Applicant's supervisor and human resources counsellor had insisted that applicant not file grievance at time she learned of filing of grievance by Ms. Picard although applicant very much wanted to do so--In addition to constituting interference with applicant's fundamental rights, intervention by human resources counsellor, in presence of applicant's immediate superior, obvious abuse of authority that may have contributed to tainting entire process that followed--Procedure used therefore tainted--When he was presented with opportunity, Assistant Deputy Minister could have attempted to correct this procedural defect and obtain full picture of dispute before him--He did not think it appropriate to do so--Intervention of this Court therefore warranted--Lack of factual analysis by Assistant Deputy Minister and of addition of new facts or factors irremediably coloured analysis, which could no longer be fair to applicant--Concerning second grievance QUE-00-05, disciplinary measure imposed on applicant in fact so imposed because of finding by departmental investigator that she had, on only one occasion, made remarks that meet definition of harassment in Harassment in Workplace Policy--In view of conclusion that, on one hand, applicant deprived of her right to hearing, and on other hand, Assistant Deputy Minister failed to consider not only Ms. Picard's conduct throughout this process but also conduct of appropriate management representatives or supervisors, written reprimand not appropriate in circumstances--Applicant entitled to be reinstated to status she had before imposition of disciplinary measure--Applications are allowed.