Green v. Canada ( Treasury Board )
T-1710-96
Cullen J.
8/7/97
12 pp.
Application for judicial review of adjudicator's decision denying applicant's grievance against discharge for disciplinary reasons-Applicant, air traffic controller for 23 years, had left control tower unmanned for thirty minutes when air traffic fairly busy, without giving required notice-Discharged for having demonstrated gross disregard for responsibilities of position, potentially jeopardizing safety of flying public-Adjudicator denied grievance on basis of gravity of misdemeanour, disbelief incident would not be repeated, and conclusion employer's decision to terminate applicant's position not unreasonable as bond of trust between it and applicant had been irretrievably broken-Applicant submitting although cause for discipline herein, adjudicator erred in failing to reinstate applicant with reduced disciplinary record-Applicant further submitting adjudicator erred in denying grievance-Subject-matter herein falling within expertise of adjudicator, and standard of curial deference applicable-Application allowed-As adjudicator not bound by strict rules of evidence applied in courts of law, adjudicator did not improperly rely on contradictory evidence in making her finding of credibility against applicant-No reason, in law to interfere with weight accorded to evidence by adjudicator, nor with determination based on weighing of evidence-No error in adjudicator's decision not to apply rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) (requiring cross-examiner to give witness notice of intention to impeach credibility of that witness by means of extrinsic evidence), as adjudicator not required to do so, nor should have been-Although adjudicator did take into consideration applicant failed to show signs of remorse or appreciation of implications of actions, conclusion not based only on that finding-On basis of perceived lack of remorse, adjudicator felt applicant could not be rehabilitated-In context of applicant's 23 unblemished years of service as air traffic controller, concern for flying public apparently not foremost in adjudicator's mind when made decision-As part of assessment of mitigating factors, in circumstances of case, adjudicator obligated to look at corrective discipline for applicant, and clearly state in reasons why corrective discipline should be rejected-Adjudicator obligated to look at corrective discipline because of applicant's long career of good service-Adjudicator failed to do so-Also, no indication adjudicator considered ramifications of dismissal for applicant (dismissal meaning, for rest of his life, applicant could not work at professional level as air traffic controller despite 23 unblemished years of service)-Adjudicator erred in assessment of mitigating factors by ignoring relevant evidence-Factors ignored by adjudicator so significant that her decision based on error in law, and patently unreasonable-Matter referred back to different adjudicator to determine appropriate penalty, taking into consideration principles of corrective and progressive discipline, and reasons of present decision.