Digests

Green v. Canada (Treasury Board)

A-542-97

Sharlow J.A.

27/3/00

15 pp.

Appeal from Trial Division decision (Green v. Canada (Treasury Board) (1997), 134 F.T.R. 108) setting aside Adjudicator's decision dismissing grievance from dismissal of air traffic controller by Transport Canada for having wilfully left control tower unmanned for 35 minutes; cross-appeal with respect to Trial Judge's finding Adjudicator did not err in application of principle from Browne v. Dunn (1893), 6 R. 67 (H.L.) as to credibility of witnesses--Trial Judge referred matter back to different adjudicator to determine appropriate penalty, taking into consideration principles of corrective and progressive discipline--Appeal allowed; cross-appeal dismissed--Appropriate standard in judicial review of adjudicators' decisions patent unreasonableness--Trial Judge vacated Adjudicator's decision because she did not address respondent's long and untarnished work record, or ramifications to him of dismissal, as possible justification for corrective discipline rather than penalty of dismissal--However, Trial Judge erred in finding work record ignored--Weighing and balancing of opposing considerations (work record v. egregiousness of abandoning post) task squarely within expertise and jurisdiction of Adjudicator--As to ramifications of dismissal, Trial Judge should not have found Adjudicator erred on issue on which no evidence adduced and not argued in adjudication or in judicial review--With respect to principle of progressive or corrective discipline, decision upholding dismissal not patently unreasonable if evidence before Adjudicator capable of supporting conclusion employment relationship fundamentally breached and no rehabilitative potential: Canadian Labour Arbitration, Donald J. M. Brown and David M. Beatty, 3rd ed., Canada Law Books Inc., Aurora, 1999--Adjudicator herein not persuaded respondent's behaviour would not be repeated; found no evidence of remorse or appreciation of gravity of situation; found respondent continued to minimize and justify actions--Adjudicator concluded employer's position bond of trust between it and respondent irretrievably broken not unreasonable--Adjudicator therefore did not err in failing to address specifically possibility of corrective or progressive discipline--As to cross-appeal, Brown v. Dunn standing for rule of evidence that where credibility of witness to be impeached by evidence contradicting testimony, witness must be given fair opportunity to explain discrepancy--Evidence for respondent from two witnesses--In one case, Brown v. Dunn not applicable--In other, Adjudicator merely gave evidence little weight, noting that even if recalled conversation indicated some past animosity, ample facts to justify decision to discharge respondent; Brown v. Dunn not precluding Adjudicator from reaching that conclusion.