Date:
20130628
Docket: T-412-12
T-413-12
Citation:
2013 FC 727
Ottawa, Ontario,
June 28, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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CHANTAL HOULE-MRAK
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
These
applications relate to two allegations of harassment and abuse of authority
against the Chairperson and Chief Executive Officer of the Canada Agricultural
Review Tribunal, Dr. Don Buckingham. The applicant to set aside two final
level grievance decisions which affirmed the disposition of her harassment
complaints.
[2]
For
the reasons that follow, the applications are dismissed.
Facts
Background
[3]
At
the time of the allegations, the applicant was employed by Agriculture and Agri-Food Canada (the Department) as the Registrar of the Tribunal. The Tribunal is small,
with three employees, the applicant, the Assistant Registrar, Rosemary Shannon,
and the Appeals Management Coordinator, Lise Sabourin.
[4]
Dr.
Buckingham was appointed as the new Chairperson of the Tribunal on July 2,
2009. Soon after his appointment, the applicant went on sick leave in relation
to her pregnancy and subsequently commenced maternity leave.
[5]
Prior
to her departure on maternity leave, the applicant appointed Ms. Shannon, the
Assistant Registrar, to the position of Acting Registrar. The applicant told
Ms. Shannon that she would be available to assist her during her leave. Ms.
Shannon eventually went on sick leave for seven months.
[6]
The
applicant told her replacement and the other employees “not to change a thing”
in the operation of the office while she was on leave. However, Dr. Buckingham
intended to implement new policies for the office, assuming a more hands on
role than his predecessor.
[7]
Ms.
Shannon gave evidence that Dr. Buckingham “asserted himself as the boss,”
managing leave requests and setting the hours of work. In contrast, the
previous Chairperson left administrative and management matters to the applicant.
Ms. Shannon recalls Dr. Buckingham saying that not everyone liked the
applicant’s style. Dr. Buckingham told Ms. Shannon not to contact the
applicant during work hours. Dr. Buckingham said that he wanted the applicant
to enjoy her leave and that he considered her continued involvement to be
contrary to the better management of the office.
[8]
Ms.
Sabourin, the Appeals Management Coordinator, agreed that Dr. Buckingham had a
different style than the former chairperson who “kept to himself.”
The First
Allegation
[9]
The
applicant and Dr. Buckingham had several conflicts during her leave and
immediately upon her return to the office. On October 6, 2010, soon after her
return to work, she filed her first complaint. The substance of the
allegations are as follows:
a.
During
her seven weeks of sick leave Dr. Buckingham called her “almost daily” and
asked her to speak at his “inauguration”. Afterwards, he requested that she
return her phone, blackberry, keys and parking pass. She explained that she
told the employees to call her anytime for advice. He was “furious” with her and
told her not to interfere with management of the Tribunal.
b.
On
January 18, 2010, she went to the office to see Dr. Buckingham to discuss
options with regards to Ms. Shannon’s sick leave. He met her and was “furious”
saying that she had no business being in the office while on leave. He said
that her role was going to be very different when she got back. The applicant
considered this derogatory and belittling. She described him as “shaking” with
his arms and legs crossed “trying so hard to contain himself.”
c.
In
March of 2010, Dr. Buckingham left her voice messages telling her to return the
keys and parking pass, though she had already done so. She told him that Ms.
Shannon had the keys and that he should stop harassing her. He sent a letter
apologising. Later that month she tried to look at job postings in
Publiservice and discovered that her email account had been disabled. Dr.
Buckingham confirmed that he did not want her accessing email during her
maternity leave. She described a heated disagreement as to whether she could
contact employees at the office.
d.
On
her first day back at work, September 10, 2010, Dr. Buckingham yelled at her
for being late. He had informed her by letter on September 1, 2010 that she
should begin work at 8:30 am. On September 9, 2010 she informed him that she
could not be in until 9:30 am, and then arrived at 10:00 am due to issues with
her home and child.
e.
On
September 13, 2010, the applicant wrote to Andrea Lyon, Associate Deputy
Minister and John Knubley, Deputy Minister to explain her conflict with Dr.
Buchingham and what she perceived as his lack of understanding about his role
as Tribunal Chair. Two days later Dr. Buchingham confronted her about whether
she contacted the Department. The applicant became fearful and requested that
security be present.
[10]
Sylvie
Labelle, the Senior Manager of Strategic Planning Human Resources and Financial
Management, gave evidence that employees are entitled to access job
opportunities while on leave. They may do so by going into the office or
calling a phone line. She said it was standard practice to disable both email
and telephone during extended leave. This became formal policy on April 30,
2010. Steven Robineau, Principal Consultant, Labour Relations, agreed that Dr.
Buckingham was within his rights to cancel the applicant’s email.
[11]
Regarding
the September 10, 2010 incident, Ms. Shannon’s evidence was that Dr. Buckingham
did not yell, but she agreed that he “sounded furious”.
[12]
Dr.
Buckingham changed the applicant’s job description. In a memorandum dated
September 1, 2010, Dr. Buckingham advised that all staff members would now
report directly to him, rather than to the applicant. On September 10, 2010,
Dr. Buckingham wrote to the applicant explaining that he considered changes
necessary to improve efficiency at the Tribunal and requested that she prepare
a report of her views on the issue. He also set out her hours of work.
[13]
On
October 6, 2010, Dr. Buchingham sent a memorandum regarding the hours of work
and lunch breaks to all employees. In a separate email directly to the
applicant, he explained that she could not combine her morning and afternoon
fifteen minute breaks with her lunch, because these breaks are for the purpose
of health and safety. He stated that she could take one hour for lunch if she
extended her work day by 30 minutes.
[14]
The
applicant says that she developed anxiety and panic attacks as a result of the
“toxic atmosphere” at work. She explains that she had gone above and beyond
her duties, but had been belittled and treated like a person in an entry level
job.
[15]
On
October 15, 2011, the applicant’s physician reported that she had situational
anxiety and cervical strain and that the primary cause was workplace
harassment.
The Second
Allegation
[16]
On
October 26, 2010, the applicant requested Dr. Buckingham’s permission to attend
training for supervisors and managers.
[17]
Dr.
Buckingham replied that the reporting structure for the Tribunal had changed in
September, 2010 and that she was not a supervisor or manager:
Firstly, I must respond to your
comment that you regard yourself as a supervisor or manager. You made a
similar statement in your harassment complaint. As you are aware, the reporting
structure at the Tribunal changed in September 2010. There are no employees
that report to you and I have not since delegated to you any overseeing
responsibilities in that regard. As such, you are accorded with no
supervisorial or managerial authorities.
[18]
He
did not approve her request to attend the training session, but stated that
they could revisit the matter once her learning plan and new work description
had been finalized.
[19]
The
applicant filed a second complaint on September 18, 2011 with regards to this
email. She alleged:
a.
Dr.
Buckingham improperly and unilaterally changed her job description, contrary to
the applicable policy, guidelines and her collective agreement.
b.
The
email contained offensive, demeaning and belittling language.
[20]
The
applicant accepts that she cannot give legal advice, but objected to the
removal of her managerial duties including managing financial and human
resources.
Investigation into
the First Complaint
[21]
The
applicable Harassment Policy provides that an investigator will deliver a
report to the delegated manager, in this case Johanne Bélisle, Assistant Deputy
Minister.
[22]
The
Department retained Charron Human Resources Inc to conduct the investigation.
Deborah Jelly interviewed witnesses and provided a report to Ms. O’Flaherty in
July of 2011, the Director of Labour Relations and is responsible for advising
Ms. Bélisle
[23]
Ms.
O’Flaherty identified what she perceived as errors and weaknesses in the
report, in particular the acceptance of the evidence of one witness over
another without explanation. She also considered the conclusions to be
unsupported. Ms. O’Flaherty advised the investigator that she could not
recommend the report in its current form and two further drafts were ultimately
submitted to Ms. O’Flaherty for review. Ms. O’Flaherty states that her goal
was not to direct a conclusion but rather to ensure that all relevant evidence
was considered.
[24]
However,
Ms. Jelly’s evidence was that she had many discussions with Ms. O’Flaherty
regarding her conclusions, in particular with respect to whether Dr. Buckingham
threatened the applicant’s job security.
[25]
The
final report was provided to Ms. Bélisle on September 7, 2011. The
investigator concluded that allegations one through four were not substantiated
but that allegation five was partially substantiated.
[26]
Ms.
Jelly determined that the evidence was inconclusive with regards to the January
18, 2010 meeting. Dr. Buckingham recalled telling the applicant that upon her
return she would no longer be permitted to dispense legal advice or issue
subpoenas, as she is not a lawyer. He denied telling her that her role would
be “drastically different.” Ms. Jelly concluded that it would be reasonable
for Dr. Buchingham to take measures to ensure Tribunal procedures complied with
the legislation.
[27]
With
regards to the parking pass, keys and mobile devices, Ms. Jelly determined that
Dr. Buchingham’s conduct was within the scope of his managerial authority.
[28]
Ms.
Jelly found that Dr. Buckingham had not harassed the applicant with regards to
her being late for work, but did consider his conduct on September 15, 2010 to
constitute harassment and abuse of authority. Ms. Jelly found that Dr.
Buckingham had become angry and frustrated, and forbid the applicant from
contacting the Department. Ms. Jelly considered there to be an implied threat
regarding the applicant’s entitlement to make a complaint.
[29]
Finally,
Ms. Jelly found that she could not determine on a balance of probabilities that
Dr. Buckingham threatened the applicant’s job security.
The Harassment
Decisions
[30]
In
a letter dated November 1, 2011, Ms. Bélisle accepted the report but rejected
the applicant’s request for financial compensation. Ms. Bélisle stated that
compensatory damages are not provided for under the Harassment Policy and that
there was no evidence that the applicant’s mental distress was caused by the
one incident which was found to be harassment.
[31]
Ms.
Bélisle also referenced the Treasury Board Policy on Legal Assistance and
Indemnification which states that legal assistance will not be provided to
Crown servants involved in internal administrative recourse mechanisms such as
harassment complaints.
[32]
Ms.
Bélisle refused the request to re-credit the applicant all of the 1057.5 hours
of sick leave, but did credit 187.5 hours so that she would not have a negative
balance.
[33]
Ms.
Bélisle also noted that the applicant had received a letter of apology from Dr.
Buckingham.
[34]
Ms.
Bélisle determined that compensation for maternity leave was not appropriate as
the harassment took place after her return. Finally, Ms. Bélisle determined
that the applicant should receive reintegration and career development support.
[35]
The
applicant filed a grievance from Ms. Bélisle’s decision on November 21, 2011,
arguing that she did not take appropriate corrective measures. The applicant
sought reinstatement of 1057.5 hours of sick leave, $6,000 for legal expenses
and $10,000 for mental distress.
[36]
In
a decision dated November 3, 2011, Ms. Bélisle advised the applicant that the
allegations in her second complaint did not meet the criteria for harassment
and therefore would not be addressed under the harassment complaint process.
[37]
The
applicant grieved this decision on November 14, 2011, arguing that Ms. Bélisle
failed to consider whether the subject matter of the complaint constituted an
abuse of authority and erred in concluding that the allegations did not meet
the criteria for harassment.
The Decision Under
Review
[38]
Claude
Carrière, the Associate Deputy Minister, rendered a third and final decision
for both grievances on February 2, 2012.
[39]
In
the first decision, Mr. Carrière stated that the corrective measures contained
in Ms. Bélisle’s November 1, 2011 decision were sufficient and that the
additional measures were not warranted in this case. He agreed that damages
for mental distress and reimbursement for legal fees were not provided for
under the Harassment Policy and further concluded that they would not be
warranted even if permitted.
[40]
In
the second decision, Mr. Carrière confirmed that the allegations in the
applicant’s second harassment complaint did not meet the criteria for
harassment and therefore they could not be an abuse of authority. Mr. Carrière
stated that even a flawed managerial decision does not generally constitute
harassment. With respect to the particular email, there was no indication of
impropriety. Mr. Carrière also considered the applicant’s allegation that the
Department interfered with the investigation of the previous harassment
complaint and that Dr. Buckingham discriminated against her during her
maternity leave but determined that these arguments were not relevant to the
grievance.
Legislation and Policy
[41]
The
Tribunal’s enabling legislation is section 4.1 of the Canada Agricultural
Products Act, RSC 1985, c 20 (4th supp). The Tribunal is an
independent, quasi-judicial body which reviews monetary penalties assessed by the
Canadian Food Inspection Agency, Canada Border Services Agency and the Pest
Management Regulatory Agency arising from regulatory action in respect of
agriculture and agri-food.
[42]
The
Chairperson and Chief Executive Officer is an Order-in-Council appointment.
The employees are members of the federal public service.
[43]
The
Public Service Labour Relations Act, RSC 2003, c 22, exists to
facilitate the resolution of labour disputes expeditiously, inexpensively and
with little formality. It includes a comprehensive scheme for grievances. Subsection
66(1) of the Public Service Labour Relations Board Regulations provides that an
employee must set out in the provided form the nature of each act or omission
giving rise to the grievance.
[44]
Sections
209 and 209.1 of the Canada Labour Code, RSC 1985, c L-2 are also
relevant. Section 209 provides that employees on leave are entitled, on
written request, to be informed in writing of every employment, promotion or
training opportunity that arises. Section 209.1 provides that employees on
leave are entitled to be reinstated to the position that the employee occupied
when commencing leave, or to a comparable position.
[45]
The
Harassment Policy contains the following definitions:
Harassment – Any improper conduct
by an individual, that is directed at and offensive to another person or
persons in the workplace, and that the individual knew or ought reasonably to
have known would cause offence or harm. It comprises any objectionable act,
comment or display that demeans, belittles, or causes personal humiliation or
embarrassment, and any act of intimidation or threat. This may include
degrading remarks, jokes, or taunting, insulting gestures, displays of
offensive picture or unwelcome comments about someone’s personal life. It
includes harassment within the meaning of the Canadian Human rights Act …
Abuse of authority is a form of
harassment. It occurs when an individual misuses the power and authority
inherent in his or her position to endanger a person’s job … managers must
exercise their authority legitimately and in good faith. … the investigator
should consider whether there is any foundation for the actions, observations
or conclusions reached by the manager or whether there is evidence of improper
intent on behalf of the accused. In order to make a finding of Abuse of
Authority, the conduct must also meet the definition of harassment.
Issues
Applicant
[46]
The
parties accept that the appropriate standard of review is reasonableness.
[47]
The
applicant makes the following submissions regarding the first decision:
a.
Mr.
Carrière erred in concluding that the corrective measures were sufficient.
b.
The
Harassment Policy allows for corrective measures which must be interpreted to
include compensation.
c.
Mr.
Carrière erred in finding that damages were not warranted.
d.
The
founded allegation of harassment need not be the sole cause for her mental
distress, only a contributing cause.
e.
The
Harassment Policy states that the Delegated Manager must ensure that
complainants have access to support and advice, and there is nothing which
states that this cannot include legal advice. The Policy on Legal Assistance
and Indemnification is not applicable.
[48]
The
applicant makes the following submissions regarding the second decision:
a.
The
tone of the email is sarcastic, malicious and condescending.
b.
The
evidence of Steven Robineau, Principle Consultant Labour Relations, confirms
that a job description can only be changed following certain procedures. Dr.
Buckingham could not arbitrarily alter a job description. The changes “had
nothing to do with the allocation of work”.
c.
Mr.
Carrière erred in failing to consider the unilateral change to her job
description and discrimination based on sex (maternity leave).
d.
Mr.
Carrière erred in failing to consider the Department’s interference in the
investigation of her first complaint. Ms. O’Flaherty, played an instrumental
role in advising Dr. Buckingham on issues relating to her leave, and therefore
had a conflict of interest.
e.
Mr.
Carrière ignored relevant evidence regarding the change to her position and
ignored applicable law, namely human rights legislation.
[49]
As
a remedy, the applicant seeks return of sick leave and damages for mental
distress. I note that these remedies are not available on judicial review.
Respondent
[50]
Regarding
the first complaint, the respondent submits that:
a.
The
applicant does not satisfy the test for damages for mental distress.
b.
The
applicant could have claimed compensation for mental distress under the Government
Employees Compensation Act.
c.
Sick
leave is a no fault system and re-crediting the days she took would constitute
unjust enrichment. The applicant did not sustain damages as she received her
full salary and benefits while on leave.
d.
Section
6.1.11 of the Policy on Legal Assistance and Indemnification is directly
applicable and bars payment for the applicant’s legal fees.
e.
The
Department did not interfere with the investigation.
[51]
Regarding
the second complaint, the respondent submits that:
a.
The
decision not to investigate the complaint was reasonable.
b.
The
applicant should have grieved Dr. Buckingham’s decision to change her work
duties rather than alleging harassment. If she had done so, the issue would
have been entirely different.
c.
It
is impermissible to raise new issues at the third level grievance stage. In
her initial grievance the applicant does not allege discrimination on the basis
of sex during her maternity leave or that the Department interfered with the
first investigation.
d.
The
applicant could have filed a grievance regarding any interference.
Analysis
[52]
As
noted at the outset, this application for judicial review should be dismissed.
[53]
The
appropriate remedy consequent on an established complaint of harassment is a
discretionary matter. In my view, an apology combined with re-crediting 187.5
hours of sick leave was reasonable. The applicant has not grieved the decision
to dismiss the majority of her allegations, leaving only one incident of
harassment. While the Harassment Policy may permit damages, it is reasonable
to find that damages would not be appropriate in these circumstances.
[54]
While
I find the degree of engagement by the Department in the investigator’s report
troubling, this matter was not the subject of the applicant’s grievances and
therefore cannot be remedied in this judicial review. I agree with the
respondent’s submissions that the applicant could have filed a separate
grievance for this issue.
[55]
I
also consider it reasonable for the Department to decline to investigate the
applicant’s second complaint. I agree with the respondent that the applicant
could have grieved any improper change to her job duties, which would involve a
different test than that for harassment. Managerial errors do not necessarily
rise to the level of harassment. There is no evidence to support the
applicant’s assertions that Dr. Buckingham had no legitimate purpose in
changing her job duties.
[56]
Finally,
I agree with the respondent that the applicant did not allege discrimination on
the basis of sex until the final level grievance decision and that the
allegations cannot evolve from the subject of the initial complaint.
[57]
Insofar
as the remedies are concerned, managers have a broad discretion under their
general managerial authority as well as Harassment Policy to correct
substantive complaints. While Mr. Carrière’s final level grievance decision
that he could not compensate the applicant for her legal costs is incorrect,
the error is immaterial, as he expressly addressed the question and determined
that he would not compensate for her legal fees in any event. This decision is
reasonable, given the objective of the policy, which is to encourage
non-adversarial resolution of workplace issues, as well as the degree of
success achieved by the applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that the applications are dismissed. There
is no order as to costs.
"Donald J.
Rennie"
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