[1994] 1 F.C. 453
T-3033-92
Attorney General of Canada (Applicant)
v.
Kahn-Tineta Horn (Respondent)
Indexed as: Canada (Attorney General) v. Horn (T.D.)
Trial Division, MacKay J.—Ottawa, September 20 and October 15, 1993.
Public Service — Termination of employment — Abandonment of position — Application to set aside Adjudicator’s decision respecting grievance under PSSRA, s. 92(1) — Respondent not returning to work after educational leave as in area circumscribed by razor wire during stand-off between Canadian Forces, Indians at Kanesatake — Employer declaring respondent absent for reasons within own control under PSEA, s. 27 — Adjudicator holding declaration of abandonment in fact disciplinary discharge — No error in application of law — No intention on respondent’s part to abandon position — No specific requirements established by law for finding of particular facts by Adjudicator — Ample evidence supporting Adjudicator’s finding made within jurisdiction under s. 92(1) — Employer not having acted in good faith.
This was an application for judicial review to set aside the Adjudicator’s decision allowing in part a grievance made by the respondent under the Public Service Staff Relations Act (PSSRA), subsection 92(1) and ordering that she be returned to work without compensation. After being granted a two-year educational leave commencing in September 1988, the respondent failed to return to work on September 4, 1990 because she was within the area at Kanesatake circumscribed by razor wire placed by the Canadian Armed Forces. As she was still absent from work on September 12, her employer, being of a view that her failure to return to work was within her own control, invoked section 27 of the Public Service Employment Act (PSEA), and declared her position abandoned, thus terminating her employment. After examining all of the evidence submitted to him, the Adjudicator concluded that the action taken against the grievor resulted from her activities in support of the Mohawk negotiating team and that the decision to use section 27 of the PSEA was related to a desire to respond to the activities of the grievor rather than to her absence. The issue was whether the Adjudicator acted beyond his jurisdiction under subsection 92(1) of the PSSRA in determining that the employer’s declaration of abandonment was in fact a disciplinary discharge.
Held, the application should be dismissed.
Where the legislature has limited review of decisions of an administrative agency by a privative clause, a court will intervene in respect of its decisions only where the agency is found to have exceeded its jurisdiction by erring in its determination of a question of law concerning its jurisdiction to consider the matter before it, or, if the question at issue is one within the agency’s jurisdiction to consider, by erring in a patently unreasonable manner. The Adjudicator, in determining whether the matter was a grievance in relation to “disciplinary action resulting in discharge” under subsection 92(1), was dealing with a question of jurisdiction, where simple error warrants Court intervention on judicial review. His decision was a decision of fact, sometimes described as jurisdictional fact since his authority to deal with the merits of the grievance was dependent upon his determination of that fact. Determination of what constitutes “disciplinary action” in a given case was intended by Parliament to be a matter for those appointed as adjudicators by the Public Service Staff Relations Board pursuant to section 93 of the PSSRA. The ultimate burden was on the applicant to persuade the Court that the Adjudicator was wrong in his finding that the respondent was discharged for disciplinary reasons.
The Adjudicator did not err in law in dealing with the respondent’s case, for three reasons. First, in order to support his finding, the Adjudicator was not required as a matter of law to first find that the employer’s opinion, that the respondent’s absence was for reasons within her control, was based on frivolous reasons or reasons other than good faith. The basis for the employer’s action is dependent upon the purposes for which the action was taken and those purposes may reflect upon the bona fides of his belief. If, on a balance of probabilities, the adjudicator finds that the purposes of the employer are related to the employee’s absence without authorization in circumstances which the employer can reasonably believe are within the employee’s control, then the adjudicator must recognize that the declaration of abandonment is beyond his jurisdiction under subsection 92(1) of the PSSRA. On the other hand, if the purposes are found to relate to discipline of the employee, then the adjudicator is bound to consider the grievance on its merits, as was done here. The Adjudicator found that the basis of the employer’s action was not related to her absence but to her support of the Mohawk negotiating team. Moreover, there was no evidence of intention on the part of the respondent to abandon her position. The cases relied upon by the applicant did not establish the necessity for the Adjudicator to find that the employer’s opinion was either based on frivolous reasons or reasons other than good faith. There are no specific requirements established by law for the finding of particular facts by the Adjudicator if his decision, made in an area of recognized expertise, is to warrant deference. The Adjudicator did not err in his application of subsection 92(1) or in his assessment that the declaration of abandonment was a disciplinary action within his jurisdiction to consider. Second, although there was no express finding that the employer acted for reasons other than good faith, the conclusion of the Adjudicator made that just as clear as if he had expressly said so. There was ample evidence in the record to support his finding that the abandonment declaration was in reality “disciplinary action resulting in discharge” within subsection 92(1) of the PSSRA. Third, assuming that the Court had to consider the “correctness” of the Adjudicator’s decision, it should be concluded that the latter was correct in the circumstances of this case. The employer’s action required a belief that the respondent had abandoned her position, based on a reasonable assessment of all the evidence available to him. That belief could hardly be reasonably formed without consideration of a number of facts which appeared to have been ignored. The only reasonable conclusion on the evidence was that the employer’s concern was primarily about the activities of the respondent at Kanesatake and not about her absence without authorization.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4)(c) (as enacted by S.C. 1990, c. 8, s. 5), (d) (as enacted idem).
Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 27, 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 92(1), 93, 99, 101(1),(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; Canada (Attorney General) v. Michaud, A-31-97, Hugessen J.A., judgment dated 8/6/87, F.C.A., not reported.
DISTINGUISHED:
Jacmain v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15; (1977), 81 D.L.R. (3d) 1; 78 CLLC 14,117; 18 N.R. 361; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429; (1989), 99 N.R. 213 (C.A.); Morin v. R., [1981] 1 F.C. 3; (1980), 36 N.R. 387 (C.A.); revg [1979] 2 F.C. 642 (T.D.); Attorney General of Canada v. Cantin, T-1070-82, Addy J., order dated 12/3/82, F.C.T.D. not reported.
REFERRED TO:
Richard v. Public Service Staff Relations Board, [1978] 2 F.C. 344; (1977), 20 N.R. 81 (C.A.); U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161.
APPLICATION for judicial review to set aside the Adjudicator’s decision ([1992] C.P.S.S.R.B. No. 159 (Q.L.)) allowing, in part, the respondent’s grievance and ordering that she be returned to work without compensation. Application dismissed.
COUNSEL:
Duff Friesen, Q.C. and Harvey A. Newman for applicant.
Andrew J. Raven and David Yazbeck for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Raven, Jewitt & Allen, Ottawa, for respondent.
The following are the reasons for order rendered in English by
MacKay J.: In this application for judicial review the Attorney General of Canada seeks an order setting aside the decision, dated November 13, 1992, of Ian Deans, Chairperson of the Public Service Staff Relations Board, sitting as an adjudicator appointed by the Board [[1992] C.P.S.S.R.B. No. 159 (Q.L.)]. By his decision the Adjudicator allowed, in part, the grievance of the respondent and ordered that she be returned to work without compensation, following a declaration by the employer, Indian Affairs and Northern Development, made September 13, 1990, that the respondent had abandoned her position. That declaration was made pursuant to section 27 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (PSEA).
The sole issue raised in this application is whether the Adjudicator acted without jurisdiction or beyond his jurisdiction in determining that the respondent’s grievance concerned a disciplinary discharge, within the jurisdiction of the Board pursuant to subsection 92(1) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (PSSRA).
The jurisdiction of the Adjudicator to consider the matter was raised as a preliminary issue before and at the Adjudicator’s hearing. By his decision he determined that the action of the employer was a discharge taken for disciplinary reasons and it was thus within his jurisdiction.
The background and the decision of the Adjudicator
The respondent was employed in the Department since 1972, most recently as Consultant, Child Welfare, with a status PM-5. In September 1988 she commenced educational leave, with pay, to pursue studies for a Masters degree at Carleton University, and that leave, originally for one year, was extended for 1989-90. In the summer of 1990 she was engaged in field work at the Mohawk communities of Kahnawake, Akwasasne and Kanesatake, in connection with a thesis project approved for her degree by the university. She was expected to return to work September 4, 1990, but at that time she was within the confines then recently circumscribed by razor wire placed by the Canadian Armed Forces at Kanesatake. She did not return to work on September 4. She did communicate with the employer through an agent, through her solicitor, and by telephone, seeking an extension of her leave and denying an intention to abandon her position in the Department. She asked that her pay continue to be deposited in her bank account, and she indicated that she would use accumulated leave credits to cover her absence. She also indicated she did not believe she could leave in safety. There was no response to her request for leave, though apparently, after some consideration, it was not considered favourably or was denied.
When she had not returned to work by September 12, senior personnel officers of the Department consulted with senior counsel at the Treasury Board. The following day, after further consultation among senior management, the Assistant Deputy Minister responsible, in the stated belief that her continued failure to return to work was within her own control, and without any warning to her, wrote to inform her that it was decided to declare her position abandoned, thus terminating her employment. That letter was sent to her Ottawa address, though she was known to be still at Kanesatake, with a copy to her lawyer in Toronto, and she did not receive the letter until October 1 when a copy was provided to her by her union representative. On that day she filed a grievance alleging that the declaration of abandonment was in fact a discharge in disguise, implicitly for disciplinary reasons. That grievance was in the following terms.
I, Kahn-Tineta Horn, grieve the contents of the letter I received dated 13 September 1990 stating that I had been released from my position as Consultant, Child Welfare (IAN-21066), PM-5 with the Department of Indian Affairs and Northern Development, owing to my “having abandoned my position”. I further grieve that my release is in fact a discharge in disguise and that the abandonment of position release mechanism is not a true or valid release procedure.
CORRECTIVE ACTION
That the letter dated 13 September 1990 be withdrawn and that I be reinstated with full pay and benefits into my position as Consultant, Child Welfare (IAN-21066), PM-5 with the Department of Indian Affairs and Northern Development effective 13 September 1990. I wish to have this grievance heard at the final level of the grievance procedure only.
The grievance was not allowed within the Department and the respondent then submitted the matter to adjudication pursuant to subsection 92(1) of the PSSRA.
The letter advising the respondent that the employer had declared her to have abandoned her position, dated September 13, 1990, signed by W. Van Iterson, A/Assistant Deputy Minister, Indian Services, reads as follows:
Dear Ms. Horn:
The following is written to advise you that pursuant to section 27 of the Public Service Employment Act, and by the authority delegated to me by the Deputy Minister, I am declaring you to have abandoned your position of Consultant, Child Welfare (IAN-21066), PM-5 with the Department of Indian Affairs and Northern Development effective this date.
This decision has been made as a result of your absence without authorization since September 4, 1990”the date at which you were to return from Education Leave. I am of the opinion that this absence of more than one week was within your control and therefore, section 27 of the Public Service Employment Act applies.
Your activities have been widely described in the media and confirmed in correspondence received from your legal counsel, as well as in conversations you have had over the telephone with officials of the Department. The fact that you have communicated with the Department in no way mitigates your unauthorized absence. On the contrary, this communication has reinforced my opinion that you voluntarily have decided to remain at Kanesatake in support of the Warriors. These activities are in contravention of the Departmental Code of Ethics and the Conflict of Interest and Post Employment Code for the Public Service, for which I could have taken severe disciplinary action against you. I have, however, chosen to proceed with abandonment of position.
You should contact Diane Dinelle of the Pay Administration Unit at Headquarters at 819-997-9883 for information regarding any outstanding benefits to which you may be entitled.
Should you feel this action is unwarranted, you have the right to present a grievance within twenty-five days of receipt of this letter, in accordance with section 91 of the Public Service Staff Relations Act.
Section 27 of the Public Service Employment Act provides:
27. An employee who is absent from duty for a period of one week or more, otherwise than for reasons over which, in the opinion of the deputy head, the employee has no control or otherwise than as authorized or provided for by or under the authority of an Act of Parliament, may by an appropriate instrument in writing to the Commission be declared by the deputy head to have abandoned the position occupied by the employee, and thereupon the employee ceases to be an employee.
Relevant sections of the Public Service Staff Relations Act are as follows:
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
…
101. (1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitrator appointed under section 63, or an adjudicator is final and shall not be questioned or reviewed in any court.
(2) No order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board, an arbitrator appointed under section 63 or an adjudicator in any of the proceedings of the Board, arbitrator or adjudicator.
Because of the nature of the attack on the Adjudicator’s decision by the applicant in this case, I reproduce substantial extracts from the Adjudicator’s review of the evidence and his decision concerning the issue of jurisdiction.
In reviewing the evidence adduced, the Adjudicator stated, in part:
In September of 1988, the grievor commenced a two-year fully paid leave for the purpose of obtaining a Masters degree from Carleton University. During this leave, she was a full time student and her studies were supervised by Professor Victor F. Valentine and included compiling a detailed account of the origin and present consequences of the several competing political ideologies prevailing in the three Mohawk communities of Kahnawake, Akwasasne and Kanesatake. In addition to reviewing historical materials, she was expected to undertake field work in these communities and interview members of the various political factions.
Starting sometime in June of 1990, a disagreement between the Mohawks of Kanesatake and the Council of the Town of Oka reached a critical phase and there followed a confrontation ….
It was the evidence of all of the witnesses who were directly involved that the situation was very tense. Witnesses for the grievor testified that entry into the outer restricted area was made difficult by what they described as intimidating tactics employed by the Sûreté du Québec and described how they were delayed and threatened while attempting to deliver approved foodstuffs. They stated that they had very little confidence in the police and were very uncertain with regard to the role of the Armed Forces.
During the Labour Day weekend, the cordon around the 50 or so remaining protesters was further tightened to the point where they were restricted to the area immediately around the treatment centre and razor wire was placed around this entire area. Shortly thereafter, normal telephone and fax communication was cut off and a single hotline similar to that normally used in hostage situations was established. All communication into and out of the area was restricted to this line which was closely monitored and restricted to only those persons approved by the Armed Forces. The grievor was one of those who was behind the razor wire enclosed area ….
Prior to the grievor’s being absent from work without leave, the employer had already started to consider what penalty should be applied as a result of her involvement. In fact, the employer as a result of a newspaper article in the Montreal Gazette on August 28th started the consideration of possible sanctions against the grievor for what they identified as a serious breach of both the Code of Conduct and the Conflict of Interest Guidelines (Exhibits E-10 and E-11). Mr. Van Iterson, in his testimony, stated that the Gazette article mentioned the grievor’s name as being involved in a leadership capacity on the part of the Mohawks. A memorandum to file dated September 14, 1990 and signed by R.E. Smart, Chief, Staff Relations and Compensation Division (Exhibit G-20), clearly sets out both the efforts of the grievor and the attitude of management during the period leading up to the invoking of section 27 of the Public Service Employment Act. It reads as follows:
MEMO TO FILE re: KAHN-TINETTA [sic] HORN
The following is a brief chronology of events leading up to the abandonment of position of Kahn-Tinetta [sic] Horn.
…
Chronology
September 4, 1990: George Miller, a former spouse of Ms. Horn, telephoned the Deputy Minister’s Office to inform the Department that she would not be at work because of her activities at Oka.
September 5, 1990: Robert Allen, an employee of the Department and a friend of Ms. Horn, submitted a Leave Application and Absence Report on her behalf—which he had also signed on her behalf—requesting other leave with pay with effect from September 4, 1990 stating that she would return to the Department at the first available opportunity; but at the moment is trapped behind the Oka barbed-wire.
September 6, 1990: Ms. Horn telephoned the Deputy Minister’s Office from the treatment centre at Oka. Mr. Swain was unable to speak to her, however, his Executive Assistant, Roberta Sante returned the call on Mr. Swain’s behalf. Ms. Horn indicated to Mrs. Sante that it was not her intention to abandon her position and that she wanted her unused leave credits to be applied to her absence. She also requested that her salary continue to be deposited directly into her bank account. Mrs. Sante requested that Ms. Horn put her request in writing.
September 7, 1990: the Deputy Minister received a fax from Ms. Horn, dated September 6, 1990, in which she stated that the Post Office in Kahnawake has been shut down for the past two weeks; therefore, her letter requesting special leave—posted August 24, 1990—would not be delivered to the Department until normal postal operations resume. In this fax, she requested that her automatic pay deposits continue. She provided a telephone number in Kanesatake where she could be reached at any time.
Also, on this date, the Deputy Minister’s Office received a telephone call from Ms. Horn’s professor at Carleton University. Professor Vallantyne [sic] informed the Department that Ms. Horn was trapped behind the barbed-wire at Oka and could not report for duty.
September 11, 1990: (At 17:26) Clayton Ruby, Ms. Horn’s solicitor, faxed a letter to the Minister’s Office informing the Department that he was representing Mr. [sic] Horn. He expressed concern that the Montreal Gazette had suggested the Department was considering dismissing her. He informed that [sic] Department that Ms. Horn’s position was “that she is behind the barbed-wire barricades at Oka doing her best to keep both sides peaceful and that this is an important function for her \to perform. It is in the public’s interest for her to act as she has.” He also stated that the Army would not let her out and it was not safe for her to leave.
September 13, 1990: the Department declared Ms. Horn to have abandoned her position pursuant to section 27 of the Public Service Employment Act. It notified Clayton Ruby of this decision at the same time.
Considerations
Ms. Horn’s activities behind the barricades at Oka have generated considerable media coverage which has reflected negatively on the management of the Department. She has been quoted in the press and given interviews on both radio and television in which she has openly defended her actions.
Her absence from duty has never been authorized by management and it is clear that she is aware of the implications of this unauthorized absence. Her actions are a contravention of the Departmental Code of Ethics and the Conflict of Interest and Post Employment Code for the Public Service. This inappropriate conduct is worthy of severe disciplinary sanctions.
…
The Chief of Staff Relations for the Department, Robert Smart, spoke to officials at the Treasury Board on September 5, 1990 to discuss the question of Ms. Horn’s potential violation of the Conflict of Interest and Post Employment Code and the Departmental Code of Ethics. Both parties agreed that given Ms. Horn’s unauthorized leave and her involvement at Oka which was generating media attention, that consideration for disciplinary action could be contemplated, however, the sensitivity of the situation should not be overlooked. The Department would be well-advised to put Ms. Horn on notice that it was aware of her actions.
The Associate Deputy Minister, Fred Drummie, spoke to the Chief of Defence Staff on September 12, 1990. General John de Chastelain confirmed to Mr. Drummie that Ms. Horn was free to leave Oka at any time and in safety. He agreed to Mr. Drummie’s request to have one of his Armed Forces personnel at Oka relay this information to Chief Bob Antone for communication to Ms. Horn.
Articles in the press about Ms. Horn’s involvement behind the barricades while still employed by the Department of Indian Affairs and Northern Development pointed out that the public was not in sympathy with Ms. Horn.
…
The case was discussed at length by the Director General, Human Resources for Indian Affairs, Jim Dalzell, Mr. Smart and Senior Legal Counsel at the Treasury Board, Harvey Newman on September 12, 1990.
…
Conclusion
The events of Ms. Horn’s unauthorized absence since September 4, 1990 were discussed in detail by Mr. Dalzell, Mr. Drummie and Mr. Willem Van Iterson, A/Assistant Deputy Minister, Indian Services. Senior management was satisfied that Ms. Horn’s absence was unauthorized, was within her control, and in excess of one week. Consequently, the conditions to declare an abandonment of position existed. It was, therefore, Mr. Van Iterson’s opinion, as the duly delegated manager, that Ms. Horn had abandoned her position and he wrote to her to advise her of this opinion. Ms. Horn ceased to be an employee of the Department of Indian Affairs as of September 13, 1990.
As previously stated on or about the 28th of August 1990, the Deputy Minister and other senior officials of the department became aware of the Gazette article which mentioned the grievor’s name as being involved in a leadership role on the part of the Mohawks. Discussion took place with regard to possible disciplinary action. A decision was made to delay any action until the grievor could be confronted upon her return to work. During the weekend of September 1st, the military surrounded the treatment centre at Oka encircling it with razor sharp barbed wire. The grievor was inside the encircled area. On Tuesday, September 4th, the grievor failed to report back to work from her educational leave. On Wednesday, a co-worker, R. Allen, submitted a request for other paid leave due to her situation. In the days that followed, the Assistant Deputy Minister, Mr. Van Iterson, determined that as a result of the grievor’s unauthorized involvement at Oka, her request was ludicrous and would be denied. The grievor was never informed of this decision.
Later in the week, the grievor attempted to reach the Deputy Minister, Mr. Swain; he was unavailable and the call was returned by his Executive Assistant, Ms. Sante. The grievor asked that her cheques be deposited in her account as usual and further that her absence from work be covered by unused vacation leave credits. Ms. Sante told her to submit her request in writing and reported the conversation to Mr. Swain. The grievor did not do so. However, by letter dated September 6 and addressed to Mr. Swain, the grievor advised that she had forwarded a request for special leave on August 24, 1990 which had been posted in the Kahnawake Post Office. Since it had recently come to her attention that the Kahnawake Post Office had shut down, she wished him to know that he should receive that letter “when normal Post Office operations resume”. In fact, that letter was never received by the employer. The grievor’s request for leave was subsequently raised at a management meeting; no action was taken. This was never relayed to the grievor. The grievor telephoned Mr. Gordon Williams, Director, Native Employment, who informed her that “all going well upon her return, she would be assigned temporarily to work in his section”. Then followed two other calls from the grievor to Mr. Williams, the second of which he had been instructed not to take but rather to direct any further communication from the grievor to Mr. Dalzell in Human Resources; no mention was made to the grievor of the employer’s concerns or intentions during these calls.
The management group met during the days between September 4th and September 12th and … was advised on September 5 to inform the grievor of management’s concern. This was not done. It became known through press reports that the employer had decided to sever the grievor’s employment on or about September 11th. Her lawyer contacted the department on her behalf and received a reply on September 13th, informing him of the employer’s action to declare her to have abandoned her position under section 27 of the Public Service Employment Act. The employer sent the notice of abandonment to the grievor’s Ottawa address although they were aware that she was still inside the compound at Oka. In the letter to Mr. Ruby, the employer states as follows: “since we cannot deliver Mr. Van Iterson’s letter directly to your client at Oka, she may not be aware of its contents …”.
The Adjudicator then summarized argument addressed to him. He concluded, on the basis of Richard v. Public Service Staff Relations Board, [1978] 2 F.C. 344 (C.A.), that he had the authority and the obligation to determine whether the employer’s declaration of abandonment was in reality a disciplinary discharge. In determining this issue he said, in part:
I am of the belief based on all of the evidence that a decision to discipline the grievor was taken as a result of her activities in support of the Mohawk negotiating team which clearly pre-dated the grievor’s failure to report for work on September 4 and continued up to the date of her termination of employment. All that was left to be decided was the form the discipline should take. I am further of the view that the decision to use section 27 of the Public Service Employment Act was related to a desire to respond to the activities of the grievor rather than to her absence. Furthermore, the relevant clauses of the collective agreement clearly permit an employee to request special leave and vacation leave and, while it is equally clear that the granting of the request is not automatic, a reply is required. The employer’s failure to respond to the grievor’s requests for leave as well as its failure to put her on notice that termination of her employment was being contemplated supports my conclusion that the employer’s actions were disciplinary in nature. Having carefully considered all of the circumstances relating to this case, I must conclude that the use of section 27 of the Public Service Employment Act was to disguise a disciplinary action which the employer had decided should be taken against the grievor.
The Adjudicator then distinguished the situation in this case from that in Canada (Attorney General) v. Michaud, cited below, and then continued.
I am satisfied on the evidence that the employer’s decision to terminate the grievor’s employment was not motivated by her absence from duty which commenced on September 4, 1990, the date on which she was to report for work following a two-year absence on paid educational leave. Rather it was motivated by her actions in support of the Mohawk negotiating team which pre-dated September 4, 1990 and continued up to and beyond September 13th. This supports my conclusion that Ms. Horn was discharged for disciplinary reasons.
The submissions of the parties
For the applicant it is urged that the Adjudicator erred in law in concluding that the employer’s action was in reality a discharge for disciplinary reasons. There was no dispute that Ms. Horn was absent from work without authorization for more than one week when the declaration of abandonment was made. In light of the statutory requirements of section 27 of the PSEA, it is submitted that for the Adjudicator to conclude as he did it was necessary for him to find that the belief of Mr. Van Iterson, acting for the employer, that she was absent for reasons within her own control, was based upon reasons that were frivolous or was reached in bad faith. No such finding was expressly made. Moreover, in his decision the Adjudicator found as a fact that the memorandum to file dated September 14, 1990, which he quoted in full, “clearly sets out both the efforts of the grievor and the attitude of management during the period” leading to the action under section 27 of the PSEA. By so doing it is said that the Adjudicator accepted as facts statements included in that memorandum, in particular that
Senior management was satisfied that Ms. Horn’s absence was unauthorized, was within her control, and in excess of one week. Consequently, the conditions to declare an abandonment of position existed. It was, therefore, Mr. Van Iterson’s opinion, as the duly delegated manager, that Ms. Horn had abandoned her position and he wrote to her to advise her of this opinion.
Confirming his opinion Mr. Van Iterson testified at the hearing that after considering the information available to him on September 13, he formed the opinion that she was absent for reasons that were within her control.
The applicant acknowledges that the circumstances here might have warranted disciplinary action, but they also met the requirements of section 27 of the PSEA. In these circumstances it is said that it was open to the employer to elect the action it would take and once the circumstances to support a declaration of abandonment were established the Adjudicator had no authority to inquire further. He could not then determine that the action was something other than what it purported to be, a declaration of abandonment, and that declaration was not subject to grievance or adjudication under subsection 92(1) of the PSSRA.
For the respondent it is urged that the Adjudicator did not err in law, that his decision that termination of the respondent’s employment was in reality a discharge for disciplinary reasons was a finding of fact within his jurisdiction to determine. That decision is not here attacked in terms of paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, as being “made in a perverse or capricious manner or without regard to the material” before the Adjudicator. Moreover, the decision is one protected by Parliament from review under the privative clause, subsection 101(1) of the PSSRA, and the Court should not intervene unless it finds the decision to be patently unreasonable, which, it is submitted, is not the case.
In the alternative, if the Court finds that the Adjudicator’s decision can stand only if it determines that the decision of the employer was made in bad faith, the findings of the Adjudicator clearly, if not expressly, so find, and the evidence before him clearly supports such a finding.
The standard for review
The submissions of the parties are based on different perceptions of the issue to be addressed by the Adjudicator, and thus of the appropriate standard for judicial review. In the applicant’s view the issue of whether the grievance concerns a discharge for disciplinary reasons involves determination of a jurisdictional question on which the Adjudicator must be correct; otherwise there is error in law and the Court should intervene.
In the respondent’s view subsection 92(1) of the PSSRA is not a provision conferring jurisdiction. Thus the determination of whether the grievance concerned a discharge for disciplinary reasons is a matter within the jurisdiction of the Adjudicator to determine, and the Court should intervene only if the decision is found to be patently unreasonable.
It is well settled that where the legislature has limited review of decisions of an administrative agency by a privative clause, a court will intervene in respect of its decisions only where the agency is found to have exceeded its jurisdiction by erring in its determination of a question of law concerning its jurisdiction to consider the matter before it, or, if the question at issue is one within the agency’s jurisdiction to consider, by erring in a patently unreasonable manner. See Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, per Cory J., at pages 956-957, (“The ‘93 PSAC case”). That case illustrates the difficulty of characterizing the initial question for the Adjudicator here, concerning his jurisdiction to consider the grievance on its merits, as either one where simple error by the adjudicator results in an excess of jurisdiction, as Cory J. found in his opinion for the majority of the Court, or one where the question to be considered is within the jurisdiction of the adjudicator which results in no excess of jurisdiction unless the decision is patently unreasonable, as L’Heureux-Dubé J. found in her opinion for the minority.
In my opinion, in light of the decision of Cory J. for the majority in the ‘93 PSAC case the Adjudicator here, dealing with the grievance of Ms. Horn under subsection 92(1) of the PSSRA, in determining whether the matter was a grievance in relation to “disciplinary action resulting in discharge”, was dealing with a question of jurisdiction, where simple error warrants intervention of the Court on judicial review. (See ‘93 PSAC case, per Cory J. at pages 964-968). If the Public Service Staff Relations Board’s determination of its jurisdiction under section 99 of the PSSRA is such a question as Cory J. found, then in my view the determination by an adjudicator of his jurisdiction to consider a grievance under paragraph 92(1)(b) of the same Act is to be characterized in the same way. The functional approach to characterizing the question, outlined by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at pages 1088-1090, as applied by Cory J. in the ‘93 PSAC case, leads to a similar characterization of the issue before the Adjudicator here as was found to be before the Board by Cory J. in that case. If that is so, mere error in applying the Act, i.e. subsection 92(1) PSSRA, is sufficient to find that the Adjudicator has exceeded the statutory jurisdiction conferred; or as it is sometimes said he must be “correct” in his interpretation.
The Adjudicator, in determining the question of whether the respondent’s grievance was one within subsection 92(1) as concerning “disciplinary action resulting in discharge”, was required to assess the action taken by the employer purporting to act under section 27 of the PSEA. His decision, that the action was taken for disciplinary reasons and thus constituted a discharge within his jurisdiction under paragraph 92(1)(b) of the PSSRA, was a decision of fact, but one sometimes described as jurisdictional fact since his authority to deal with the merits of the grievance was dependent upon his determination of that fact. His determination is not challenged on the ground that it was perverse or capricious or without regard to the evidence before him, as a challenge seeking judicial review in relation to facts found requires under paragraph 18.1(4)(d) of the Federal Court Act. Rather, it is challenged on the ground that other findings of fact were, by law, required to be made to support his conclusion on the jurisdictional issue and, since those were not expressly set out in the Adjudicator’s decision, it is urged he erred in law. That is a ground warranting judicial review under paragraph 18.1(4)(c) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act.
In resolving this matter and determining the issue whether the Adjudicator erred in law, that is, whether he erred in determining the jurisdictional question, there are, in my view, two general considerations to be borne in mind. The first is that this is an application for judicial review and, as in any such application, the burden is on the applicant to demonstrate that the Adjudicator has erred in a manner warranting intervention of the Court. Put in other terms, the applicant must ultimately persuade the Court that the Adjudicator’s decision was wrong. There is no burden on the respondent to establish that the Adjudicator was correct, at least in terms of the final burden on the parties. Thus, in the regular case of proceedings for judicial review there is significant deference accorded to the adjudicator or administrator to whom Parliament has assigned statutory responsibility. The second consideration is that in this case deference is supported, if not heightened, by the special role Parliament has assigned to the work of the Public Service Staff Relations Board and adjudicators appointed by the Board, a role particularly emphasized by section 101, a broadly worded privative clause protecting their decisions from appeal or judicial review.
That special role, and the expertise of those charged with responsibility under the PSSRA in the resolution of differences arising in labour relations in the public sector is now well settled. (See the ‘93 PSAC case, per Cory J., at pages 967-968 and per L’Heureux-Dubé, at page 978, and Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, per Cory J., at pages 659-663 with whom Sopinka J., for the majority of the Court, agreed in principle, at page 628). In the latter case, (“Econosult”), the issue concerned the determination of a jurisdictional issue defined in part by Parliament’s inclusion of a definition of “employee” in the PSSRA. A statutory definition was not one of the circumstances in the issue of jurisdiction in the ‘93 PSAC case, just as there is no parliamentary definition of “disciplinary action” as those words are used in subsection 92(1) of the PSSRA.
Determination of what constitutes “disciplinary action” in a given case was, in my view, intended by Parliament to be a matter for determination by those appointed as adjudicators by the Public Service Staff Relations Board pursuant to section 93 of the PSSRA. The question for the Adjudicator is whether the employer’s action is “disciplinary action resulting in discharge” under subsection 92(1). It is the sort of question that lies within the core of the Board’s concerns with labour management relations in the Public Service and within the recognized expertise and experience of those persons appointed by the Board as adjudicators. Parliament has determined by the broad terms of section 101 of the Act that decisions of the Board or its appointed adjudicators shall ordinarily not be subject to review, in the interests of speedy and final resolution of disputes between the employer and public servants under the PSSRA.
These general considerations relating to appropriate deference for decisions of the Adjudicator lead me to consider that in this case the ultimate burden is on the applicant to persuade the Court that the Adjudicator was wrong in his finding that the respondent was discharged for disciplinary reasons.
Analysis
I am not persuaded that the Adjudicator was wrong in this case, for two reasons. First, I am not persuaded that in order to support his finding, that the action by the employer was a disciplinary action resulting in discharge within subsection 92(1), he was required as a matter of law to first find that the opinion of Mr. Van Iterson, that the respondent’s absence was for reasons within her control, was based on frivolous reasons or reasons other than good faith. Second, if I am wrong in interpreting the law on that matter, in my view the decision of the Adjudicator read as a whole does find that the opinion of Mr. Van Iterson was based on reasons other than good faith, even though that is not expressly stated, and there is evidence that supports such a conclusion. Thus, I am not persuaded that the Adjudicator was wrong, that he erred in law. Finally, if it be necessary for this Court to find, not merely that the Adjudicator was not wrong, but that he was correct in his application of subsection 92(1), then I conclude that on the basis of the evidence before him the Adjudicator was correct in his application of the law. I deal with each of these conclusions in turn.
First, I am not persuaded by the applicant’s submission that, as a matter of law, in order to support his finding, the Adjudicator must first find that Mr. Van Iterson’s belief, that the absence was for reasons within the respondent’s control, was based upon frivolous grounds or was reached for reasons other than good faith. That argument is based essentially upon the decision of de Grandpré J. in Jacmain v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15, at pages 36-37, and of the Court of Appeal in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.).
Both Jacmain and Penner concerned situations of rejection of probationary employees under subsection 28(3) of the PSEA where an adjudicator had upheld a grievance under now subsection 92(1) of the PSSRA that termination of employment was for disciplinary reasons. Both cases support the proposition that where circumstances would warrant either disciplinary action or rejection under section 28 of the PSEA of a probationary employee, the employer is free to choose the latter. The applicant urges that the same principle is applicable where action is taken under section 27 of that Act.
I am not prepared to accept that submission. In my view, both Jacmain and Penner should be read as relating to situations involving rejection of a probationary employee under section 28, the facts with which each case dealt. While superficially similar to the problem here raised, in my opinion rejection under section 28 of a probationary employee for cause, unsuitability generally, raises issues of a different order, and implicitly wider discretion for the employer, than in the case of action under section 27 to declare a long-standing employee has abandoned her position. I note that in this case there was no evidence of or reference to any previous dissatisfaction with the respondent’s work, indeed she is said to have been encouraged by her employer to undertake her studies and she did so on fully paid leave initially for one year and renewed for a second year. There was no evidence of any previous history of absence that was of concern. Abandonment of a position by such an employee would surely be unexpected.
Moreover, a long-term employee, retained long beyond the probationary period is entitled to grieve, and to request adjudication under subsection 92(1) of the PSSRA if termination of employment is “a disciplinary action”, i.e. for disciplinary reasons. Discharge for disciplinary reasons is possible but action by the employer for disciplinary reasons is subject to grievance and adjudication processes under paragraph 92(1)(b). Where the adjudicator has before her or him a grievance that alleges that termination of employment is in reality a discharge for reasons of discipline, the adjudicator must determine whether that allegation reflects reality or whether the termination, here by a declaration that the employee has abandoned her position, is made for other reasons as prescribed by statute. In a case such as this, it is not sufficient for the adjudicator to consider whether the statutory conditions for a declaration of abandonment appear to have been met, and if that is the case, to desist from further inquiry. It is incumbent upon her or him to consider whether that appearance accords with reality by assessing the basis upon which the action was taken, considering the evidence that is adduced. (See Richard v. Public Service Staff Relations Board, supra.)
The basis for the action by the employer is surely dependent upon the purposes for which the action was taken and those purposes may reflect upon the bona fides of the belief of the employer. The belief of the employer under section 27 of the PSEA, in my view, concerns two elements, an opinion that the employee’s absence is for reasons within her control and, just as important, though implicit in light of the evident purpose of that section, that the employee has abandoned the position. That implicit opinion is, in my view, essential in light of the purpose of the section, which I believe is self evident, to provide authority to deal with the situation where the permanent employee abandons a position, and the requirements set out in the section concern the circumstances, the evidence, that supports that opinion. If, on a balance of probabilities, the adjudicator finds that the purposes of the employer are related to the employee’s absence from his employment without authorization in circumstances which the employer can reasonably believe are within the employee’s control, so that the opinion that the employee has abandoned the position is reasonable in the circumstances known to the employer, then the adjudicator must recognize the declaration of abandonment and that it is beyond her or his jurisdiction under subsection 92(1) of the PSSRA. On the other hand, if the purposes are found to relate to discipline of the employee then the adjudicator is bound to proceed to consider the grievance on its merits, as was done in this case.
I find implicit support for this view of the matter in Canada (Attorney General) v. Michaud, not reported, Court file A-31-87, June 8, 1987 (F.C.A.), where Hugessen J.A. for the Court said:
We are all of the opinion that the adjudicator assumed a jurisdiction which she did not have. As the respondent was the subject of a declaration pursuant to section 27 of the Public Service Employment Act … that he had abandoned his position the Adjudicator, who was acting pursuant to subsection 91(1) [now subsection 92(1)] of the Public Service Staff Relations Act … had no jurisdiction to review this declaration unless it was in fact a disguised disciplinary action. There is no evidence in the record to support such a conclusion: quite the contrary. It was common ground that the respondent had a clean disciplinary record at the time he was absent from his work without notice for a period of several months. To justify her conclusion that this was a disciplinary action the adjudicator relied on a single act by the employee, namely his unauthorized absence from work, the same act as was relied on by the employer to justify the declaration made pursuant to section 27. In our view, once the adjudicator found that the basis of the declaration that the position had been abandoned was the employee’s absence, she could not go beyond the declaration and find that that very absence was by itself the source of an alleged disguised disciplinary action.
In this case the Adjudicator found that the basis of the employer’s action was not related to her absence but to her actions in support of the Mohawk negotiating team. Moreover, there was no evidence of intention on the part of the respondent to abandon her position; indeed the evidence contradicts any opinion that she so intended.
Two other cases are referred to by the applicant. In Morin v. R., [1981] 1 F.C. 3 (C.A.) the Court of Appeal reversed the Motions Judge [[1979] 2 F.C. 642] who had allowed an action for a declaration that a Deputy Minister’s declaration of abandonment under section 27 of the PSEA was invalid because the Deputy did not exercise his discretion fairly where at the time of his decision he did not know all of the reasons for the employee’s absence. Accepting that the employer need not know all of the reasons for the employee’s absence, I would distinguish Morin on its facts for the employee there concerned was absent from work on a number of occasions following a transfer to Ottawa. He was written to no less than three times asking for an explanation, directing his return to work and ultimately warning of possible action to declare he had abandoned his position, to which correspondence the employee made no response whatever, ultimately continuing his absence. In the case at bar no such communications were addressed to Ms. Horn.
In Attorney General of Canada v. Cantin, not reported, Court file T-1070-82, March 12, 1982 (T.D.), Addy J. granted prohibition to restrain an adjudicator from proceeding to consider a grievance under now subsection 92(1) of the PSSRA in a case where the employer had declared abandonment of a position under section 27 of the PSEA, where the employee had been “absent for eleven days without permission and without giving any sign of life”, apparently the latest and last in a series of absences, the previous ones arising from alcoholism. In that case, the Adjudicator, who had considered the question of his jurisdiction as a preliminary matter, was found to have erred by basing his conclusion that the declaration of abandonment was invalid on the ground that the reason for absence was not sufficiently clear. Moreover, Addy J. found on the evidence there was no basis for questioning the employer’s opinion that the absence was for reasons within the employee’s control. Again, that case is distinguishable from the one at bar, in my view. Here, Ms. Horn communicated with the employer on a number of occasions, both herself by telephone and fax machine and through agents and counsel, requesting leave, without any response from the employer and she indicated, and her employer knew from her communications and from her lawyer through the period September 5 to 11, that she considered herself trapped and not free to leave in safety the razor wire enclosure at Kanesatake.
In my view the circumstances in Cantin, as in Morin, are so different from the facts of this case that those cases cannot be considered as determinative of the issue here. In both those cases the basis of the employer’s action was accepted as the unauthorized absence of the employee.
Thus, I am not persuaded that the cases relied upon by the applicant establish the necessity for the Adjudicator to find that the opinion of Mr. Van Iterson, that the respondent’s absence was for reasons within her control, was either based on frivolous reasons or reasons other than good faith. In dealing with a grievance that a declaration that a long-standing employee has abandoned her position is in reality a discharge taken as a disciplinary action, in my view the Adjudicator is entitled to consider the evidence and to assess the opinion of the decision-maker, essential to action under section 27 of the PSEA, that the employee has abandoned her position, and to assess the basis or purpose of the employer. If the employer can be said to have been concerned with the unauthorized absence and to have acted for that reason in the opinion that the absence is for reasons within her control and thus she may reasonably be considered to have abandoned the position, a declaration of abandonment is supported and an adjudicator dealing with a grievance under subsection 92(1) is without jurisdiction to review that action. If the employer’s action is directed against the activities of the employee other than her unauthorized absence in circumstances where it is not reasonable for the employer to have the opinion that the employee has abandoned her position, the Adjudicator may find that the declaration of abandonment is in fact disciplinary action and a discharge in disguise. In my view, there are not specific requirements established by law for the finding of particular facts by the Adjudicator if his decision, made in an area of recognized expertise, is to warrant deference. I am not persuaded that the Adjudicator was wrong in his application of subsection 92(1) of the PSSRA or in his assessment that the declaration of abandonment, in the circumstances of this case, was a disciplinary action within his jurisdiction to consider.
If I am wrong in finding there are not specific requirements established by law for facts to be determined by the Adjudicator and it was necessary for him to find that the opinion of the employer was “for reasons based on anything other than good faith”, in the words of de Grandpré J. in Jacmain, supra, at page 36, then in my opinion the Adjudicator did so find in this case. I do not agree that by quoting the departmental memorandum the Adjudicator thereby adopted as fact all of the matters as described in that memorandum. In particular, the bona fides of the recorded opinions that Ms. Horn’s absence was within her control and that she had abandoned her position are put in question by the Adjudicator’s finding that the basis of the employer’s action was discipline of the respondent.
Admittedly there is no express finding that the employer acted for reasons other than good faith, or that the opinion of Mr. Van Iterson that the absence of the respondent was for reasons within her control was formed for reasons other than good faith. Yet the conclusion of the Adjudicator here makes that just as clear as if he had expressly said so. He found that the action of the employer was not based upon concern for the unauthorized absence but rather was based upon reasons relating to Ms. Horn’s perceived activities at Kanesatake. He found as well that the employer was considering possible disciplinary action in relation to those activities from August 28, while she was still on leave, up until the time action was taken to declare her position abandoned. To so find is surely to find that the action in declaring the position abandoned was for reasons other than the good faith of the employer. To be acting in good faith, in light of the underlying purpose of section 27 of the PSEA, the employer’s concern is to be with unauthorized absence of the employee in circumstances which support his opinion that the employee has abandoned her position. In my view, there was ample evidence in the record to support the Adjudicator’s finding and I am not persuaded that he erred in law in finding in the circumstances of this case that termination of employment by declaring the respondent’s position to be abandoned was in reality disciplinary action resulting in discharge, and thus within his jurisdiction to consider under subsection 92(1) of the PSSRA.
Finally, if I have been wrong in my approach in relation to the jurisdictional decision of the Adjudicator and if it is necessary that this Court consider the “correctness” of this decision, I conclude that the Adjudicator was correct in the circumstances of this case. I do so with some reluctance but only because in my view this step tends to place the ultimate burden on the respondent when the issue of jurisdiction is raised, and it fails to accord appropriate deference to the decision of the Adjudicator for which there is, in my view, ample support in the evidence adduced. Nevertheless, despite reluctance to review the decision for “correctness”, I find that the Adjudicator was correct. I do so on the following evidence.
In his affidavit in support of the applicant’s originating motion for judicial review, Robert E. Smart, Senior Labour Relations Consultant in the Department avers as follows:
11. Mr. W. Van Iterson gave the following evidence at the adjudication hearing. On September 13, 1990, he considered the circumstances surrounding the Respondent’s absence from work. He determined she had been absent from duty for a period of more than one week. He considered the information that was available to him at that time and formed the opinion that the Respondent’s absence was not authorized or provided by or under the authority of an Act of Parliament, and that the Respondent was not absent for reasons which were beyond her control. He believed that the Respondent voluntarily remained behind the barricades at Oka after her leave expired to assist the Warriors, and not because she was prevented from leaving in safety; and furthermore, even if she had been “trapped”, she knew or ought to have known that by going behind the barricades when she did she was taking a risk that she might be prevented from reporting for work as scheduled. Mr. Van Iterson based his belief that the Respondent was voluntarily absent on a number of factors, including his personal knowledge of her history of activism in support of Mohawk causes, and information from senior departmental officials who had been in direct contact with the Canadian Army who confirmed that the Respondent had been given an assurance that she could leave Oka in safety. He also considered that she had been in regular communication with the Department but had never requested assistance to leave. He also believed that her desire to remain behind the barricades was such that it would not have served any useful purpose to inform her that she would not be granted leave as requested. He also believed that the Respondent was committing acts of misconduct during her unauthorized absence. However, after seeking and receiving advice, he believed he was entitled either to take disciplinary action or declare her to have abandoned her position. He decided to exercise his statutory authority to declare her to have abandoned her position. His evidence on these points was uncontroverted.
That evidence is qualified in part by the affidavit of Jacques Dupont, who represented the respondent at the hearing before the Adjudicator, who avers certain qualifications of the evidence said to have been given by Mr. Van Iterson, in light of other evidence adduced at the hearing.
In my view, in light of the purpose of section 27 of the PSEA as I have found it, Mr. Van Iterson’s action required a belief that the respondent had abandoned her position, based on a reasonable assessment of all the evidence available to him. That belief could hardly be reasonably formed without consideration of the following facts, which he appears not to have considered:
1) the respondent denied she was abandoning her position in one communication to the Department and she requested on several occasions that her pay continue to be deposited in her bank account;
2) the respondent’s requests for leave were not responded to at all, either her request for special leave or her request that her absence from September 4 be attributed to her accumulated vacation leave;
3) there was no advice to the respondent from those concerned in the Department about her conduct or her absence, or that they were concerned, or that she should return to work or that action was contemplated under section 27 if she did not return. Notice of that action, if contemplated, before a declaration of abandonment is made, is provided for in the relevant personnel management manual and no attempt was here made to provide notice. While the manual is not law, it does indicate what is expected of the employer in the normal course, in fairness to the employee;
4) Mr. Van Iterson’s opinion that Ms. Horn was absent for reasons within her control, in so far as it was based on his personal knowledge of her support in the past for Mohawk causes was concluded without any opportunity provided for the respondent to comment on the current circumstances. In so far as it was based on a belief that she knew or ought to have known that by going behind the barricades when she did she was taking a risk that she might be prevented from reporting for work as scheduled, the opinion ignores the fact that the respondent could not be expected to have foreseen the installation of the razor wire enclosure just a very few days before her scheduled return, and moreover it implicitly accepts that at the time she was scheduled to return it was not completely within her control to do so;
5) the assurance that the respondent could leave the enclosure at Kanesatake in safety, and this be conveyed to her, by the Armed Forces was only requested by a senior officer of the Department on September 12, the day that senior officers met with Treasury Board officials to determine what to do, and the day before the declaration of abandonment was made;
6) the employer had not settled on any but temporary responsibilities for the respondent in advance of her return to work and as late as August 29 a temporary assignment pending further consideration was arranged in light of her scheduled return on September 4, but her performance of particular responsibilities within the Department was not apparently a matter of great concern, either before or after September 4;
7) the employer continued from at least August 28 to September 13 to be very concerned about the respondent’s activities at Kanesatake as these were perceived, essentially on the basis of media reports without any attempt to obtain information from the respondent herself, and that concern is evident in the letter declaring her position abandoned.
In my view the only reasonable conclusion on the evidence is that the employer’s concern was primarily about the activities of the respondent at Kanesatake. It was not about her absence without authorization. It could not have been reasonably believed that she intended to abandon her position. The belief of Mr. Van Iterson that the absence was for reasons within her control could not be said to have been formed in good faith in circumstances where he was aware that the respondent considered she was trapped and could not leave with assurance of safety, a factor noted on behalf of the respondent from the second day of her absence, reiterated by her in subsequent communications and again on September 11 by letter from her lawyer. Only after that letter, the following day, did a senior officer of the Department communicate with the Chief of the General Staff of the Canadian Armed Forces for assurance that she could leave in safety and to request that this be communicated to her.
There was ample evidence to support the conclusion of the Adjudicator that action taken by the employer was “disciplinary action resulting in discharge” within subsection 92(1) of the PSSRA. In my view, if it be necessary to state a conclusion in this regard, I conclude that the Adjudicator was correct.
Conclusion
Since I am not persuaded that the Adjudicator erred in law in finding the grievance was within his jurisdiction to consider on its merits, this application for judicial review is dismissed.