Docket: A-530-14
Citation: 2015 FCA 188
|
CORAM:
|
TRUDEL J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
|
|
BETWEEN:
|
|
CLAUDIA GAL
|
|
Applicant
|
|
and
|
|
CANADA REVENUE
AGENCY
|
|
Respondent
|
REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the bench at Ottawa,
Ontario, on September 9, 2015.)
TRUDEL J.A.
[1]
The Public Service Labour Relations Board (the
Board) dismissed the complaint (dated January 30, 2012) brought by Claudia
Gal under section 190 of the Public Service Labour Relations Act,
S.C. 2003, c. 22, s. 2 (the Act). Ms. Gal alleges that her employer
refused to consider her applications for acting appointments because she was
carrying out union duties.
[2]
She is now seeking judicial review of the Board’s
decision and submits that the Board committed many errors of fact and of law
warranting the Court’s intervention. Two of the errors are worth dealing with
here.
[3]
First, the applicant submits that she was not
given a fair and equitable hearing in that the Board asked her to submit her
evidence before the employer had even discharged its burden.
[4]
According to the applicant, subsection 191(3)
of the Act reverses the burden of proof, because the written complaint in
respect of the alleged failure “is itself evidence that
the failure actually occurred and, if any party to the complaint proceedings
alleges that the failure did not occur, the burden of proving that it did not
is on that party”. In paragraph 46 of her memorandum of fact and
law, the applicant goes on to state that the Board’s decision to require that
she present her evidence first, [translation]
“despite the detailed allegations in her complaint, and
without reason or justification, was . . . a violation of her right to
procedural fairness”.
[5]
We do not agree with this argument. The Board is
master of its own procedure. In this matter, it decided to reject the
procedural objection made by the applicant at the start of the hearing and
consequently invited her to present her evidence before the employer presented
its evidence. We do not have the Board’s written reasons for this decision, but
the record allows us to infer that the complaint was not as straightforward as
the applicant suggests, which may have influenced the Board’s decision.
[6]
In any event, even if the applicant were right
and her complaint clear-cut, we would note that she has not demonstrated any
prejudice. Furthermore, after the employer presented its evidence, the
applicant made no effort to recall witnesses or to adduce additional evidence
in reply, as the Board invited her to do.
[7]
While it is true that issues of procedural
fairness are reviewable on a standard of correctness, the standard of review
applicable to an allegation of procedural unfairness concerning the content of
the duty of fairness in a particular context is more nuanced (Re:Sound v.
Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R.
170, at paragraphs 34-42).
[8]
In the matter at bar, irrespective of the
applicable standard of review, we have not been satisfied that, in proceeding
as it did and inviting the applicant to present her evidence at the beginning
of the hearing, the Board committed an error in law or any other error.
[9]
The applicant further argues that the Board
erred in law when it found that it could not consider certain facts described
in the complaint because they occurred over 90 days before the complaint
was filed. According to the applicant, the Board erred in restricting its
review of the complaint solely to the events that took place between
October 31, 2011, and January 30, 2012. The applicant submits that
the prior events were a series of incidents adduced by her to [translation] “establish
the employer’s anti-union intent or attitude” (applicant’s memorandum, at
paragraph 55).
[10]
A close reading of the Board’s reasons does not
support this argument. It is clear that the Board sought to determine whether
the applicant was discriminated against contrary to subsection 186(2) of
the Act during the relevant period. That was its role. But it is also clear
that the Board listened to the applicant’s complaints. At paragraph 8 of
its decision, it is stated: “I have chosen to not
reproduce Mr. Chouinard’s alleged actions or words, qualified as
intimidating, as they were without consequence and uncorroborated and they
occurred well before October 31, 2011”. The Board heard all the
evidence. In exercising its discretion, it gave this evidence the weight it
considered appropriate and found the employer’s evidence to be more credible
(see paragraphs 38 and following of the Board’s decision). The
intervention of the Court is therefore not warranted. Lastly, the applicant
must also fail with respect to the other errors of fact or mixed fact and law
alleged by her.
[11]
Consequently, the application for judicial
review will be dismissed with costs.
“Johanne Trudel”
Certified true
translation
Erich Klein
Email this Content