Date:
20090220
Docket: A-52-08
Citation: 2009 FCA 51
CORAM: NADON
J.A.
BLAIS
J.A.
PELLETIER
J.A.
BETWEEN:
CARMEN SAUMIER
Applicant
and
ATTORNEY GNERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an application
for judicial review of a decision dated January 3, 2008, by Léo-Paul Guindon,
Board Member of the Public Service Labour Relations Board (the “Board”),
dismissing the applicant’s complaint against her employer, the Royal Canadian
Mounted Police (the “RCMP”), filed under sections 133 and 147 of the Canada
Labour Code, R.S.C. 1985, c. L-2 (the “Code”), stating that the RCMP took
or threatened to take disciplinary action against her for the legitimate
exercise of her rights under section 128.
[2]
The
application for judicial review raises, inter alia, the question of
whether the applicant’s complaint was admissible. More specifically, we must
decide whether, in the circumstances of this case, the applicant could exercise
the rights set out at subsection 128(1) of the Code and, consequently, file a
complaint against her employer under sections 133 and 147 of the Code.
Facts
[3]
The
following summary of facts is necessary in order to place the issue raised by
the appeal in its proper context.
[4]
The applicant has been
a member of the RCMP since 1987 and holds the rank of constable. On December
14, 1993, she had a work-related accident while working as an anti-smuggling
investigator in the Customs and Excise Section when the unmarked car in which
she was a passenger was struck by a van driven by smugglers attempting to
escape. The applicant was thrown against the windshield, suffering a
concussion.
[5]
As a result of this
accident, the plaintiff suffered from a number of medical problems. More
particularly, besides fatigue and generalized chronic pain, owing to which a
rheumatologist diagnosed her with fibromyalgia in November 1997, the applicant
suffered from headaches and memory and vision problems. In addition, following
an examination by an ophthalmologist on February 9, 1994, she was diagnosed
with post-traumatic fibrillar degeneration of the vitreous body of the eye.
Various specialists have performed many medical exams for the applicant’s past
and ongoing medical problems.
[6]
Since her accident in
1993, the applicant has been off work on many occasions. She did not work from
December 14, 1993, to May 1994. As of March 1998, she was limited to light duty
and in August 2004, her employer amended her medical profile and decided that
she was incapable of performing an RCMP constable’s main tasks, but that she
could carry out sedentary administrative tasks.
[7]
On
September 23, 2004, the applicant agreed to return to work based on a schedule
that set her return for October 4, 2004, at which time she would work a
five-day workweek of four-hour days. The schedule provided for an increase of
one hour per day for every subsequent week, ending with eight-hour workdays at
the end of a five-week period. The applicant’s assigned duties were sedentary
administrative tasks.
[8]
From
October 26 to November 8, 2004, the applicant was on sick leave for
pharyngitis. As of November 20, 2004, her treating physician, Dr. Subak,
removed the applicant from her work duties for depression and fibromyalgia.
[9]
Furthermore,
on November 5, 2004, the applicant asked Dr. Mitchell S. Pantel, Medical
Officer, Occupational Health and Safety, “C” Division, RCMP, for an opinion that
would allow her to not follow the gradual schedule she had accepted in
September.
[10]
On
November 29, 2004, the applicant took note of a memorandum from Chief
Superintendent Roger L. Brown, Officer in Charge, Human Resources, Central
Region, notifying her that she had to follow the schedule she had accepted on
September 23, 2004.
[11]
Accordingly,
the applicant returned to work on November 30, 2004 for a seven-hour workday.
She worked the same on December 1 and 2, 2004, took annual leave on December 3
and 6, 2004, and worked eight-hour days on December 7 and 8, 2004.
[12]
On
December 9, 2004, the applicant consulted Dr. Subak about pharyngitis. Noting
that the applicant’s health had deteriorated after her return to full-time
work, Dr. Subak declared her unfit to work from November 10 to 20, 2004, and
recommended that her work schedule be changed to four half-days per week.
[13]
The
applicant therefore returned to work for four-hour days starting on December
13, 2004.
[14]
In January
2005, the RCMP requested that Dr. Jocelyn Aubut, a psychiatrist, meet with the
applicant to perform a psychiatric assessment. On January 27, 2005, Dr. Aubut
submitted his expert report, with the following conclusions:
[translation]
-
diagnosis
of pain disorder with a strong psychological component, with no evidence of
major depression or post-traumatic stress; possibility of fibromyalgia,
hypercholesterolemia;
-
the
limitations reported by the complainant are related to fatigue, sleep problems
and chronic pain; without some adjustment in the patient’s case management, no
significant change can be hoped for;
-
a
suggested gradual return starting with four half days per week, which could be
raised by a half day every two weeks, with some adjustment in treatment;
without such an adjustment, the patient will encounter highs and lows and is
very unlikely to be able to achieve a full-time schedule;
-
the return
to administrative work excludes overnight shift work or overtime;
-
no
plausible date can be determined for a return to full-time work; and
-
treatment
based on post-traumatic stress disorder should be adjusted to one based on pain
disorder with a strong psychological component.
[15]
Relying on
Dr. Aubut’s conclusions, Dr. Pantel gave his opinion that the applicant’s
treatment plan should be geared to a gradual return to work, given that the
applicant’s health problems were somatic in origin.
[16]
As of
February 22, 2005, the applicant did not report for work. On August 17, 2005,
Dr. Baltzan declared the applicant unfit to work for an indefinite period
as a result of diurnal hypersomnolence.
[17]
During
this time, Dr. Subak recommended a disability period from June 22 to July 20,
2005, for depression and sleep problems, which she extended to September 1,
2005, and then to September 21, 2005.
[18]
Pursuant
to an order by Inspector Moreau, the applicant was monitored in August and
September 2005 by means of video recordings. Two surveillance reports were
filed with the RCMP and, after viewing the video recordings, Dr. Pantel found
that the applicant’s activities were incompatible with a recommendation of
total disability. Dr. Pantel notified Inspector Moreau in the following terms:
[translation]
This is to
inform you that based on a thorough review of the member’s medical file, I am
of the opinion that this member is able to resume a modified work assignment
(administrative tasks) on a full-time basis effective immediately. This opinion
takes into consideration the information provided by the member herself at a
meeting and the opinion of her treating physician.
[19]
Following
Dr. Pantel’s conclusions, the RCMP refused the applicant’s request for sick
leave. On September 22, 2005, she was served with a return-to-work order,
informing her that her request for sick leave had been refused and that she had
to report to work.
[20]
Following
the service of the return-to-work order on September 22, 2005, the
applicant notified her employer that she refused to obey that order. More
particularly, on September 23, 2005, S/Sgt Delisle, representative of the
Association of Members of the RCMP, informed Inspector Lemyre, the officer in
charge of border integrity, “C” Division, that the applicant’s refusal to
return to work was based on section 128 of the Code.
[21]
On
September 27, 2005, the applicant reported to S/Sgt. Vaillancourt at the
Airport Federal Investigation Section (the “AFIS”) offices in Dorval, and notified S/Sgt.
Vaillancourt that she refused to work to avoid aggravating her health. Replying
to S/Sgt. Vaillancourt’s question asking her to specify the tasks in respect of
which she refused to work, the applicant had no reply other than the statement
she had already made, namely that she refused to work [translation] “because of her health”.
[22]
On
September 30, 2005, S/Sgt Vaillancourt gave the applicant a return-to-work
order issued by Inspector Lemyre. This order reads, in part, as follows:
[translation]
WHEREAS you are no
longer on sick leave and are deemed fit to carry out duties, with limitations;
WHEREAS on September
22, 2005 you were served with my return-to-work order for Friday, September 23,
2005 at 08:00 at the Airport Federal Investigation Section at 700 Leigh
Capreol, Dorval;
WHEREAS on September
27, 2005 you reported to the Airport Federal Investigation Section at 700 Leigh
Capreol, Dorval and verbally indicated to S/Sgt. Luc Vaillancourt your refusal
to work for health reasons, without even knowing the tasks that would be
assigned to you;
AND WHEREAS it was
therefore premature to submit a refusal to work under sections 127.1 and
128 of Part II of the Canada Labour Code,
I HEREBY NOTIFY YOU that my
return-to-work order, with which you were served on September 23, 2005 at 08:00
at the Airport Federal Investigation Section at 700 Leigh Capreol, Dorval,
Quebec still stands.
Failure to
comply with the order issued to you on September 22, 2005 shall be considered a
contravention of section 40 and/or 49 of the Code of Ethics and could
lead to disciplinary action under the RCMP Act. You could also be
subject to administrative discharge under section 19 of the RCMP Regulations
for abandonment of post.
KINDLY ACT
ACCORDINGLY
[23]
The
applicant immediately notified S/Sgt. Vaillancourt that she would continue her
refusal to work. The applicant then provided her employer with Dr. Subak’s
clinical report, dated September 20, 2005, according to which the applicant was
to be considered unfit for work from September 20 to November 9, 2005.
[24]
On October
3, 2005, after having taken Dr. Subak’s report into consideration, Dr. Pantel
notified Chief Superintendant Brown that, in his opinion, the applicant was fit
to return to work. Chief Superintendant Brown accepted that recommendation.
[25]
The
applicant submitted a new clinical report from Dr. Subak stating that she was
unfit to work from November 9 to December 7, 2005.
[26]
On
November 25, 2005, on Dr. Pantel’s recommendation, Chief Superintendant Brown
refused to grant the applicant sick leave.
[27]
In early
December 2005, Inspector Lemyre issued a new return-to-work order, which
Sergeant Ehlebracht handed to the applicant. By means of this return-to-work
order, Inspector Lemyre reiterated the return-to-work order that had been
served on the applicant on September 22, 2005, and notified her of the action
that could result from her refusal to comply with the return-to-work order.
[28]
On
December 20, 2005, the applicant reported to her employer’s office and notified
Corporal Léo Mombourquette that she refused to work to avoid aggravating her
medical condition.
[29]
On
December 20, 2005, the applicant filed with the Board the complaint that Board
Member Guindon dismissed and that is now the subject of this appeal.
Decision of the Board
[30]
First, the
Board member concluded that the applicant exercised her right of refusal under
section 128 of the Code “while at work”. More particularly, according to the
Board member, the applicant met the requirement of subsection 128(1) when she
appeared with S/Sgt. Bélisle at her employer’s office on September 27, 2005 to
inform S/Sgt. Vaillancourt of her refusal to work.
[31]
Second,
the Board member concluded that the applicant had met the requirements of
subsection 128(6)—that she inform her employer without delay of the reason
for her refusal to work—by stating to her employer on September 22, 2005, that
she was unfit to work due to illness and reiterating that information during a
telephone conversation and meeting with S/Sgt. Vaillancourt on September
27, 2005.
[32]
According
to the Board member, the employee’s obligation under subsection 128(6) to
inform her employer was met, even though the information given to the employer
was only in general terms. In this case, the RCMP fully understood that the
applicant refused to work “based on the recommendations of her doctors, who had
declared her unfit to work” (paragraph 114 of the Board member’s reasons).
[33]
Third, the
Board member dismissed the applicant’s complaint on the grounds that she had
not demonstrated that she had reasonable cause to believe that her return to
work posed a risk to her health or safety within the meaning of section 128 of
the Code. As a result of that conclusion, the Board member found that there was
no need to determine whether the RCMP had taken disciplinary action against the
applicant owing to her trying to exercise her rights under section 128 of
the Code.
Submissions of the parties
A. Applicant’s submissions
[35]
The
applicant is first challenging the Board member’s decision on the ground that
he issued an unreasonable decision by imposing an excessive burden of proof on
her. According to the applicant, both burdens of proof imposed by Parliament in
a complaint arising from the exercise of the right of refusal to work are on
the employer, to the benefit of the employee. However, according to the
applicant, the Board member placed the onus on her to prove that her concern
was well founded, instead of considering whether the refusal was based on
genuine safety concerns. The applicant alleges that it was clear in this case
that she was following her physicians’ recommendations when she exercised her
right of refusal to work.
[36]
The
applicant further contends that the Board member issued an unreasonable
decision in not taking into account the fact that the RCMP acted in
contravention of sections 128 and 129 of the Code in its refusal to hold an
internal investigation, allow an investigation by a health and safety officer
regarding the applicant’s refusals to work and allow her to exercise her right
of appeal. The applicant alleges that the RCMP’s actions are in clear violation
of section 147 of the Code. She submits that in neglecting to take the
employer’s conduct into account, the Board member deprived her of the Code’s
protection.
B. Respondent’s
submissions:
[38]
First, the
respondent alleges that the applicant’s complaint was inadmissible. It submits
that an employee can only refuse to work under section 128 of the Code while at
work, and that in the case at bar, the applicant was not at work when she
alleged exercising her right of refusal. The respondent submits that the applicant’s
reliance on section 128 of the Code is merely a sham designed to challenge her
employer’s decision to refuse her sick leave and, therefore, that this remedy
cannot provide the legal effects sought in her complaint under section 133 of
the Code. Accordingly, the respondent submits that the applicant could not
receive the protection provided by section 147 of the Code, because she was not
“at work” as required by subsection 128(1).
[39]
Second,
the respondent submits that that the standard of review is reasonableness and
that, in this case, the Board member’s decision dismissing the applicant’s
complaint is not unreasonable. More particularly, the respondent submits that
the Board member did not err in finding that the reasons given by the applicant
in support of her refusal to work do not constitute reasonable cause to believe
that there was a danger to her health within the meaning of section 128 of the
Code.
[40]
Lastly,
the respondent submits that the Board member did not place an excessive burden
of proof on the applicant. The respondent acknowledges that subsection 133(6)
of the Code provides for a reversal of the burden of proof in favour of the
employee, but only if the employee’s complaint is made in respect of the
exercise of a right under section 128 or 129 of the Code. The respondent
submits that the applicant did not discharge her burden of establishing that
she had exercised a refusal to work under section 128 of the Code.
Issue
[41]
The appeal
raises two issues.
1)
was the
applicant’s complaint admissible?
2)
if the
answer to the first question is yes, it is then up to this Court to determine
whether the Board’s decision is reasonable.
Analysis
A. Legislative provisions
[42]
Before
proceeding, I reproduce the relevant sections of the Code, as follows:
|
128. (1)
Subject to this section, an employee may refuse to use or operate a machine
or thing, to work in a place or to perform an activity, if the employee while
at work has reasonable cause to believe that
(a) the use or operation of the machine
or thing constitutes a danger to the employee or to another employee;
(b) a condition
exists in the place that constitutes a danger to the employee; or
(c) the performance
of the activity constitutes a danger to the employee or to another employee.
(2) An employee
may not, under this section, refuse to use or operate a machine or thing,
to work in a place or to perform an activity if
(a) the refusal puts
the life, health or safety of another person directly in danger; or
(b) the danger
referred to in subsection (1) is a normal condition of employment.
…
(13) If an employer
disputes a matter reported under subsection (9) or takes steps to protect
employees from the danger, and the employee has reasonable cause to believe
that the danger continues to exist, the employee may continue to refuse to
use or operate the machine or thing, work in that place or perform that
activity. On being informed of the continued refusal, the employer shall
notify a health and safety officer.
…
129. (1)On
being notified that an employee continues to refuse to use or operate a
machine or thing, work in a place or perform an activity under subsection
128(13), the health and safety officer shall without delay investigate or
cause another officer to investigate the matter in the presence of the employer,
the employee and one other person who is
(a) an employee member
of the work place committee;
(b) the health and
safety representative; or
(c) if a person
mentioned in paragraph (a) or (b) is not available, another employee from the
work place who is designated by the employee.
…
(6) If a health and
safety officer decides that the danger exists, the officer shall issue the
directions under subsection 145(2) that the officer considers appropriate,
and an employee may continue to refuse to use or operate the machine or
thing, work in that place or perform that activity until the directions are
complied with or until they are varied or rescinded under this Part.
(7) If a health and
safety officer decides that the danger does not exist, the employee is not
entitled under section 128 or this section to continue to refuse to use or
operate the machine or thing, work in that place or perform that activity,
but the employee, or a person designated by the employee for the purpose, may
appeal the decision, in writing, to an appeals officer within ten days after
receiving notice of the decision.
…
133. (1) An
employee, or a person designated by the employee for the purpose, who alleges
that an employer has taken action against the employee in contravention of
section 147 may, subject to subsection (3), make a complaint in writing to
the Board of the alleged contravention.
…
147. No
employer shall dismiss, suspend, lay off or demote an employee, impose a
financial or other penalty on an employee, or refuse to pay an employee
remuneration in respect of any period that the employee would, but for the
exercise of the employee’s rights under this Part, have worked, or take
any disciplinary action against or threaten to take any such action against
an employee because the employee
(a) has testified or
is about to testify in a proceeding taken or an inquiry held under this Part;
(b) has provided
information to a person engaged in the performance of duties under this Part
regarding the conditions of work affecting the health or safety of the
employee or of any other employee of the employer; or
(c) has acted in
accordance with this Part or has sought the enforcement of any of the
provisions of this Part.
147.1 (1) An
employer may, after all the investigations and appeals have been exhausted by
the employee who has exercised rights under sections 128 and 129, take
disciplinary action against the employee who the employer can demonstrate has
wilfully abused those rights.
(2) The employer must
provide the employee with written reasons for any disciplinary action within
fifteen working days after receiving a request from the employee to do so.
[Emphasis
added]
|
128. (1) Sous
réserve des autres dispositions du présent article, l’employé au travail peut
refuser d’utiliser ou de faire fonctionner une machine ou une chose, de
travailler dans un lieu ou d’accomplir une tâche s’il a des motifs
raisonnables de croire que, selon le cas :
a) l’utilisation ou le
fonctionnement de la machine ou de la chose constitue un danger pour lui-même
ou un autre employé;
b) il est dangereux
pour lui de travailler dans le lieu;
c) l’accomplissement
de la tâche constitue un danger pour lui-même ou un autre employé.
(2) L’employé ne
peut invoquer le présent article pour refuser d’utiliser ou de faire
fonctionner une machine ou une chose, de travailler dans un lieu ou
d’accomplir une tâche lorsque, selon le cas :
a) son refus met
directement en danger la vie, la santé ou la sécurité d’une autre personne;
b) le danger visé
au paragraphe (1) constitue une condition normale de son emploi.
[…]
(13) L’employé peut
maintenir son refus s’il a des motifs raisonnables de croire que le danger
continue d’exister malgré les mesures prises par l’employeur pour protéger
les employés ou si ce dernier conteste son rapport. Dès qu’il est informé du
maintien du refus, l’employeur en avise l’agent de santé et de sécurité.
[…]
129. (1) Une
fois informé, conformément au paragraphe 128(13), du maintien du refus,
l’agent de santé et de sécurité effectue sans délai une enquête sur la
question en présence de l’employeur, de l’employé et d’un membre du comité
local ayant été choisi par les employés ou du représentant, selon le cas, ou,
à défaut, de tout employé du même lieu de travail que désigne l’employé intéressé,
ou fait effectuer cette enquête par un autre agent de santé et de sécurité.
[…]
(6) S’il conclut à
l’existence du danger, l’agent donne, en vertu du paragraphe 145(2), les
instructions qu’il juge indiquées. L’employé peut maintenir son refus jusqu’à
l’exécution des instructions ou leur modification ou annulation dans le cadre
de la présente partie.
(7) Si l’agent
conclut à l’absence de danger, l’employé ne peut se prévaloir de l’article
128 ou du présent article pour maintenir son refus; il peut toutefois —
personnellement ou par l’entremise de la personne qu’il désigne à cette fin —
appeler par écrit de la décision à un agent d’appel dans un délai de dix
jours à compter de la réception de celle-ci.
[…]
133. (1)
L’employé — ou la personne qu’il désigne à cette fin — peut, sous réserve du
paragraphe (3), présenter une plainte écrite au Conseil au motif que son
employeur a pris, à son endroit, des mesures contraires à l’article 147.
[…]
147. Il est
interdit à l’employeur de congédier, suspendre, mettre à pied ou
rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou
de refuser de lui verser la rémunération afférente à la période au cours de
laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus
par la présente partie, ou de prendre — ou menacer de prendre — des
mesures disciplinaires contre lui parce que :
a) soit il a témoigné
— ou est sur le point de le faire — dans une poursuite intentée ou une
enquête tenue sous le régime de la présente partie;
b) soit il a fourni à
une personne agissant dans l’exercice de fonctions attribuées par la présente
partie un renseignement relatif aux conditions de travail touchant sa santé
ou sa sécurité ou celles de ses compagnons de travail;
c) soit il a observé
les dispositions de la présente partie ou cherché à les faire appliquer.
147.1 (1) À
l’issue des processus d’enquête et d’appel prévus aux articles 128 et 129,
l’employeur peut prendre des mesures disciplinaires à l’égard de l’employé
qui s’est prévalu des droits prévus à ces articles s’il peut prouver que
celui-ci a délibérément exercé ces droits de façon abusive.
(2) L’employeur doit
fournir à l’employé, dans les quinze jours ouvrables suivant une demande à
cet effet, les motifs des mesures prises à son égard.
[Non
souligné dans l’original]
|
[43]
A close
reading of these legislative provisions leads to the following conclusions:
(i)
subsection
128(1) provides that an employee is entitled, inter alia, to refuse to
work in a place or to perform certain activities “if the employee while at work
has reasonable cause to believe” that there is danger for the employee in
working in his or her workplace or that the employee’s performance of his or
her activities constitutes a danger to the employee;
(ii)
the
exception to that principle is found at subsection 128(2), which provides that
an employee cannot invoke section 128 to refuse to work in a place or to
perform certain activities if “the danger referred to in subsection (1) is a
normal condition of employment”;
(iii)
under
section 147, an employer shall not take any disciplinary action against or
threaten to take any such action against an employee who is legitimately
exercising his or her rights pursuant to Part II of the Code, entitled
“Occupational Health and Safety”, which includes section 128;
(iv)
if the
employer has acted in contravention of section 147, an employee may file a
written complaint “of the alleged contravention” with the Board;
(v)
however,
after all investigations and appeals provided at sections 128 and 129 have been
exhausted, section 147.1 allows an employer to take disciplinary action against
an employee who has “wilfully” abused those rights.
[44]
That is
the legislative context of the complaint lodged by the applicant, who alleges
that following the exercise of her rights under section 128, the RCMP issued
her a return-to-work order, an order that it reiterated on more than one
occasion, threatening her with disciplinary action if she continued her
refusal.
B. Standard of review
[45]
The
respondent submits that the standard of review is reasonableness. Although the
applicant does not explicitly address this question, considering the arguments
she makes in her memorandum of fact and law, I conclude that she does not
disagree with the respondent on this point. In light of the Supreme Court’s
decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, I believe that the standard
applicable to the Board’s decision is reasonableness.
C. Is the applicant’s complaint
admissible?
[46]
Board
Member Guindon’s task was to determine whether the applicant’s claim was well
founded. In other words, to the extent that the applicant could rely on section
128, did the RCMP take disciplinary action or threaten to take such action
against her because she had sought to have said section applied?
[47]
Consequently,
the Board member had to decide, prior to considering the merits of the
complaint, whether the applicant could rely on section 128 in support of her
refusal to work. According to the respondent, the applicant could not rely on
said section, since the employee must be “at work” to be able to refuse “to
work in a place or to perform an activity”.
[48]
The matter
of the admissibility of the applicant’s complaint was raised for the first time
by the respondent in a letter addressed to the Board on May 25, 2006, which
reads, in part, as follows:
[translation]
We wish to
inform the Board that the employer intends to contest the admissibility of the
complaint that Ms. Saumier filed with the Board under section 133 of Part II of
the Canada Labour Code (“the Code”).
…
When Ms.
Saumier invoked subsection 128(1) of the Code, she was not performing
her tasks and, furthermore, she had never done so because she had been absent
from her work on sick leave for several months.
[49]
At
paragraph 113 of his reasons, Board Member Guindon addressed this issue as
follows:
113.
Paragraphs 128(1)(b)and(c) of the Code provide that “while
at work” an employee may refuse to work in a place if he or she has reasonable
cause for believing that it is dangerous to the employee to work in that place
or to perform an activity if he or she has reasonable cause to believe that
performing the activity constitutes a danger to the employee or to another
employee. The words “while at work” necessarily imply that an employee may not
exercise a right to refuse to work when that employee is not at work.
Consequently, the respondent was justified in not accepting that the refusal to
work expressed by the complainant to Sergeants Génier and Bissonnette on
September 22, 2005 was valid under the Code. However, the complainant
met that requirement when she appeared with S/Sgt. Delisle at the AFIS office
in Dorval on September
27, 2005 to express her refusal to work to S/Sgt. Vaillancourt.
[Emphasis
added]
[51]
In the
context, it is important to note that when the applicant reported to the office
of her employer on September 27, 2005, accompanied by S/Sgt. Delisle, she
indicated to her employer that she refused to work because she did not want to
aggravate her health problems. More particularly, she indicated to S/Sgt.
Vaillancourt, who had asked her to specify which duties she refused to perform,
that she refused to work [translation]
“for her health”. As well, on December 20, 2005, the applicant again reported
to the office of her employer and indicated to Corporal Léo Mombourquette that
she refused to work to avoid aggravating her medical condition.
[52]
Accordingly,
the applicant’s complaint was not admissible because she was not “at work” when
she invoked subsection 128(1) of the Code in support of her refusal to work.
[53]
Notwithstanding
his erroneous finding that the applicant was “at work”, the Board member
nonetheless concluded that the complaint should be dismissed. In my opinion,
that conclusion is not unreasonable. I will explain.
[54]
The
summary of facts at paragraphs 3 to 29 above clearly reveals the nature of the
dispute between the applicant and her employer. The facts show unequivocally
that this dispute results from Dr. Pantel’s and Dr. Subak’s divergent opinions
on the applicant’s ability to perform the sedentary tasks that her employer had
decided to assign to her. As I have mentioned several times, when the applicant
filed her complaint on December 20, 2005, she had not worked for several
months. It follows from these facts that the applicant’s real submission is
that she cannot perform any sedentary administrative tasks and that performing
such a task, given her state of health, would only aggravate her condition.
[56]
In my
opinion, there can be no doubt that the circumstances of the case cannot, in
any way, give rise to a remedy under section 128 of the Code. Accordingly,
I conclude that intervention is unwarranted.
Disposition
[57]
For these
reasons, I would dismiss the application for judicial review with costs.
“M.
Nadon”
“I
agree.
Pierre
Blais J.A.”
“I
agree.
J.D.
Denis Pelletier J.A.”
Certified
true translation
Sarah
Burns
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