Digests

Oliver v. Canada (Customs and Revenue Agency)

T-1167-03

2004 FC 1462, Campbell J.

21/10/04

15 pp.

Judicial review of decision of Adjudicator, member of Public Service Staff Relations Board, dismissing grievance against termination by Canada Customs and Revenue Agency (CCRA)--Applicant challenging decision on ground Adjudicator erred in admitting documents into evidence at hearing on CCRA's application--Art. 17.04 of collective agreement between Public Service Alliance of Canada and CCRA providing that employer agreeing not to introduce as evidence in hearing relating to disciplinary action document from employee's file, content of which employee not aware of at time of filing or within reasonable period thereafter--Art. 17.04 due process standard--Applicant commencing employ-ment as Trust Examiner/Collections/CPP/UI Coverage Officer at Revenue Canada (now CCRA)--Later appointed to position of PM-2 Income Tax/Excise Tax Auditor--CCRA terminated employment on ground prepared income tax returns for remuneration while employed by CCRA, contrary to CCRA's Conflict of Interest Code and despite employer's request to stop--Applicant filed grievance challenging CCRA's decision to terminate employment--Grievance referred to adjudication after employer's final level of response--At hearing, Adjudicator implicitly admitting three specific documents comprising final investigation report, notes to file regarding conversations with applicant, and investigation memorandum as evidence into hearing record--Documents not specifically referred to in Adjudicator's reasons for dismissing grievance --Reasonableness "global" standard of review applying to Adjudicator's decision to dismiss grievance; correctness standard of review applying to Adjudicator's evidentiary ruling on meaning of art. 17.04--Adjudicator accepting fact applicant not actually seeing three documents in question before hearing but not reading art. 17.04 as mandatory standard of due process--Art. 17.04 due process standard imposing strong duty of fairness since standard concerning issue of notice in disciplinary process potentially resulting in termination of employee--Art. 17.04 clearly intending to give grievor actual notice of contents of document before admitted into evidence--Usually meaning grievor would be provided copy of document in advance of hearing or have contents read to him/her in manner allowing grievor to understand full content of document, prepare necessary response--Term "file" in art. 17.04 must be given expanded meaning to meet provision's fairness intent--Adjudicator must ask whether documents in possession of employer and whether applicant had knowledge of actual contents before admitting documents into evidence--Adjudicator failing to approach admission of documents as required and therefore making reviewable error of law--However, admission of documents having no impact on final outcome of adjudication--In light of Supreme Court decision in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, applicant submitting that breach of due process should automatically result in order setting aside Adjudicator's decision--Cardinal case establishing that denial of right to fair hearing rendering decision invalid whether or not reviewing court finding that hearing would likely have resulted in different decision--Cardinal to be viewed in light of Supreme Court's more recent requirement that if tribunal breaching duty of procedural fairness in reaching final decision, reviewing court obliged to determine whether breach affecting final determination, judged according to global standard of review--Despite factual differences in Cardinal and present case, Adjudicator's interpretation of art. 17.04 resulting in determination that Adjudicator failed to observe principle of procedural fairness--However, Adjudicator's admission of documents not rendering decision dismissing grievance unreasonable--Therefore, on global standard of review, Adjudicator not making reviewable error and order setting aside decision under Federal Courts Act, s. 18.1(3) cannot be made--Application dismissed--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(3) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).