Date: 20010504
Docket: A-722-96
Neutral citation: 2001 FCA 142
NOËL J.A.
SHARLOW J.A.
BETWEEN:
AUBREY ROGERVILLE
Appellant
(Respondent)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
A-723-96
AUBREY ROGERVILLE
Appellant
(Applicant)
- and -
THE PUBLIC SERVICE COMMISSION APPEAL BOARD, JOHN A.
MOONEY AND WARDEN, EDMONTON INSTITUTE, acting on behalf of
the deputy head DEPARTMENT OF SOLICITOR GENERAL,
EDMONTON, ALBERTA
Respondents
(Respondents)
Heard at Edmonton, Alberta on Thursday, April 26, 2001
Judgment delivered at Ottawa, Ontario on Friday, May 4, 2001
REASONS FOR JUDGMENT: NOËL J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
Date: 20010504
Docket: A-722-96
Neutral citation: 2001 FCA 142
CORAM: ROTHSTEIN J.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
AUBREY ROGERVILLE
Appellant
(Respondent)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
A-723-96
AUBREY ROGERVILLE
Appellant
(Applicant)
- and -
THE PUBLIC SERVICE COMMISSION APPEAL BOARD, JOHN A.
MOONEY AND WARDEN, EDMONTON INSTITUTE, acting on behalf of
the deputy head DEPARTMENT OF SOLICITOR GENERAL,
EDMONTON, ALBERTA
Respondents
(Respondents)
REASONS FOR JUDGMENT
[1] These are appeals from two decisions of a motions Judge (reported at (1996) 117 F.T.R. 43 and 53) allowing the Attorney General's application for judicial review of a decision of the Public Service Commission Appeal Board (the "Appeal Board"), and dismissing the appellant's application for judicial review of a portion of the decision of the Appeal Board. The two appeals were heard together by order of this Court. These reasons will dispose of the two appeals.
The Facts
[2] The appellant commenced employment as a psychologist for the Correctional Service of Canada (the "employer") on January 2, 1986. He worked at the Edmonton Institution, a federal penitentiary.
[3] Following the murders of a police constable in June 1990, and that of a taxi driver in December of 1991 at the hands of two parolees from the Edmonton Institution, an enquiry was launched into the appellant's competence in the performance of his duties. The appellant had, in both cases, written the psychological reports of the inmates for the National Parole Board.
[4] On September 25, 1992, the warden of the Edmonton Institution recommended the appellant's release from his position on the basis of incompetence pursuant to section 31 of the Public Service Employment Act, R.S.C. 1985, c.P.-33. The decision to release the appellant was based primarily on a report entitled Report of the Board of Inquiry prepared by two psychologists in the course of the inquiry into the appellant's competence.
[5] The appellant appealed the recommendation of the warden and an Appeal Board was constituted to conduct an inquiry into the recommendation to release the appellant. The Appeal Board after an extensive hearing allowed the appeal and recommended that the Public Service Commission not act on the recommendation of the warden to release the appellant.
[6] In its reasons, the Appeal Board concluded that there was sufficient evidence for the warden to conclude that the appellant was incompetent (herein referred to as "the finding of incompetence"). The Board found, however, that the recommendation for release should not be adopted because the employer had failed to give the appellant prior notice that his work performance had been unsatisfactory. In that regard, the Board relied on the decision of the Federal Court of Appeal in Dansereau v. Canada (Public Service Commission), [1991] 1 F.C. 444. In that case, Décary J.A. stated at page 460:
I therefore conclude on this point for the purposes of the case at bar that when an employee who has performed the same duties for several years consistently receives satisfactory performance reports and is not the subject of any serious criticism by his employer, a presumption results that he has the necessary competence to perform the said duties and, in the absence of unusual or urgent circumstances, the employer cannot dismiss him for incompetence without telling him of the mistakes he is alleged to have made, without giving him an opportunity to correct them and without indicating to him the risk of dismissal he runs if they are not corrected.
[7] Applying the test set out in Dansereau, the Appeal Board found that there were no "unusual or urgent circumstances" which justified a relaxation of the notice rule in the present case.
[8] The employer sought judicial review of the Appeal Board's decision. At the same time, in a separate application, the appellant sought judicial review of the Appeal Board's finding of incompetence.
[9] The two applications were heard together. In the first of two decisions rendered contemporaneously, the motions Judge granted the employer's application. He held the Appeal Board had made a reviewable error by failing to find there were "unusual or urgent circumstances" which justified a departure from the notice requirement set out by this Court in Dansereau. The motions Judge therefore quashed the decision of the Appeal Board and remitted the matter to the Board for disposition in conformity with a direction that the appeal be dismissed.
[10] In the second decision, the motions Judge dismissed the appellant's application holding that he was without jurisdiction to hear it. In his view, the appellant was seeking review of the reasons for the decision, rather than the decision itself which, the Court noted, had been favourable to the appellant.
[11] The appellant brought appeals against each of the foregoing decisions.
[12] In support of his appeal against the first decision, the appellant alleges that the motions Judge committed a reviewable error when he held that there were "unusual or urgent circumstances" justifying a departure from the notice requirement set out in Dansereau (supra). The appellant alleges in the alternative that the motions Judge erred in remitting the matter to the Board with the direction that the appeal be dismissed.
[13] In support of his appeal against the second decision, the appellant alleges that the motions Judge erred in holding that he could not seek judicial review of the finding of incompetence made by the Appeal Board in the course of its reasons independently of the decision itself.
Analysis and Decision
[14] With respect to the first decision, the appellant submits that the motions Judge improperly interfered with the finding of fact made by the Appeal Board when he held that there were "unusual or urgent circumstances" justifying a departure from the notice requirement set out in Dansereau. The finding made by the Appeal Board on this point is as follows (page 120 of the reasons):
The Department also argued that this was one of the urgent circumstances referred to in the Dansereau decision since the Appellant presented a danger to the inmates he was treating and to the public because of his role before the National Parole Board. I am not convinced that this is the case. The psychological services the appellant was providing the inmates could well have been monitored by his superiors or colleagues, during the notice period. The same type of monitoring could have been done with respect to the reports he submitted to the National Parole Board. The same Board could also have been warned to be cautious with the appellant's reports. There are many other reports submitted to the National Parole Board and it could easily identify cases where the appellant's recommendations were not in line with other intervenors in the parole decision.
[15] Before proceeding to overturn this finding, the motions Judge noted that a high degree of deference was owed to the Appeal Board on questions of fact and that only a fundamental error made without regard to the material would justify his intervention. In this respect, it was conceded during the hearing of the appeal that the motions Judge correctly identified the applicable standard of review. The appellant contends however that this standard was improperly applied.
[16] The finding of incompetence made by the Appeal Board was predicated on evidence which confirmed the appellant's serious clinical and technical deficiencies, his proclivity to act as advocate for inmates, and his record of having intentionally misled the National Parole Board as to inmates' suitability for parole. The Board of Inquiry had gone so far as to say in the course of its report:
... He has repeatedly placed himself and others in very dangerous circumstances as a result of his unwillingness or inability to set necessary boundaries in his relationships with inmates.
He has shown no awareness of the extent of his conflict of interest in his multiple roles as assessor, counsellor, and advocate for inmates. He has likewise shown no awareness of the limits of his oft-cites clinical judgement. There is evidence that he has deliberately cultivated a position of power and influence with the National Parole Board and then used that influence to urge the Board toward decisions about inmates based on inadequate information and unsupported opinion (Report of the Board of Inquiry, Appeal Book, vol. 1 at page 146).
[17] Despite the Appeal Board's finding that the appellant posed a danger to the inmates and the public, it held that there was no emergency in removing the appellant having regard to the employer's capacity to monitor his professional activities in the manner suggested in the passage quoted at paragraph 14 of these reasons.
[18] I agree with the motions Judge that the Appeal Board's conclusion that there were no urgent circumstance warranting the immediate release of the appellant was reached in flagrant disregard of the evidence, and as such, constituted a reviewable error.
[19] As the motions Judge demonstrates at length in his reasons, the evidence before the Appeal Board was that no one within the institution was capable of monitoring the appellant having regard to the specialized nature of his activities.
[20] The appellant argued that there were qualified individuals outside the institution who could have assumed that role and that the motions Judge erred in failing to recognize this option. He referred in particular to Dr. Leis who held the position of Regional Psychologist at the relevant time.
[21] The evidence before the Appeal Board was that Dr. Leis was located in Saskatoon and that in his capacity of Regional Psychologist, he performed no functional or supervisory role over the appellant or his colleagues. Although a recommendation was made that he assume that role after the Report of the Board of Inquiry was produced, there is no indication that he did or that he could assume that role. I note in this respect that Dr. Leis testified at the hearing before the Appeal Board some three years after this recommendation was made and was cross-examined by counsel for the appellant.
[22] The appellant also suggested that Dr. Howes who was employed at the Stoney Mountain Institute in Manitoba could have performed the role of supervising the appellant. However, Dr. Howes' testimony as related by the Appeal Board makes it abundantly clear that he did not have the capacity to supervise the appellant (Reasons of the Appeal Board, page 45).
[23] The appellant further argued that the employer could have obtained the necessary funding to hire a qualified psychologist from the University of Alberta in order to supervise the professional activities of the appellant. However, there is no indication that such funding was available or that it would have been reasonable or feasible for someone outside the employer's organization to monitor the professional activities of the appellant.
[24] Finally, there is no merit to the suggestion that the motions Judge ignored the Appeal Board's finding that the appellant could have been supervised by the two psychologists who were working with him at the Institution. The evidence in that regard is that the appellant saw himself as their superior (Reasons of Appeal Board, page 42) and that the working relationship was, in the words of the Appeal Board, "confrontational" by reason of the appellant's behaviour (Reasons at pages 116-117). The evidence also reveals that one of these two co-workers was on stress leave at the time of the hearing before the Appeal Board and the other is on record saying that he would quit his job if the appellant was allowed to return to work at the Edmonton Institution (Reasons at page 81). Against this background, it is apparent that the Appeal Board's suggestion that the appellant's activities could have been monitored by his colleagues was arrived at without regard to the evidence and indeed without regard to its own finding.
[25] The motions Judge went on to consider the Appeal Board's further suggestion that the danger which the appellant's incompetence posed to the parole release process could be offset by a warning of caution being placed on the appellant's reports to the National Parole Board. The motions Judge pointed out in this respect that the evidence before the Appeal Board was that Parole Board members place considerable weight on psychological reports and some members have no training in psychology. This prompted him to say at page 12 of his reasons:
... I fail to understand how the NPB could be expected to perform its duties when in receipt of a psychological report prepared by the [appellant], with a warning of caution attached to it. Those members of the NPB who are untrained in psychology could not possibly assess the accuracy of the [appellant's] reports.
[26] In my view, the motions Judge was on solid ground when he held that the Appeal Board committed a gross error when it held that the circumstances did not require the immediate release of the appellant having regard to the employer's capacity to supervise him. I can detect no error in the judgment of the motions Judge quashing the decision of the Appeal Board on this basis.
[27] The appellant argued that even it if was open to the motion Judge to decide as he did, the effect of the order which he issued was to deny him the right to be heard on the Appeal Board's finding of incompetence. This issue overlaps with the one raised by the second appeal. The appellant submits that the combined effect of these two decisions is that his arguments against the Appeal Board's finding of incompetence were never heard.
[28] With respect to the second appeal, there is no doubt that the motions Judge correctly held that judicial review could not be had from the reasons for decision independently of the decision itself. To that extent, he properly declined to hear the judicial review application brought by the appellant. As was stated by Rothstein J.A. in GKO Engineering - A Partnership v. The Queen, (A-384-00) 2001 FCA 73:
What is at issue on a judicial review is the judgment of the lower Court or tribunal under review, not the reasons for judgment. An applicant for judicial review seeks to have the matter remitted for redetermination leading to a different disposition by the lower Court or tribunal.
A respondent is normally satisfied with the disposition by the lower Court or tribunal. Accordingly, the respondent has no reason to seek judicial review of that judgment. However, the respondent may not agree with all the reasons of the lower Court or tribunal. Unless the respondent seeks a different disposition, however, the respondent has no basis to bring its own judicial review application. Where it does not seek to have the matter remitted for a different disposition, the appropriate procedure is for the respondent to raise, in its record on the applicant's judicial review, those arguments it seeks to make in respect of those portions of the reasons with which it disagrees.
[29] As this passage suggests however, the appellant was entitled to advance his arguments against the Appeal Board's finding of incompetence in response to the employer's judicial review application and it is difficult to see why he was not invited to do so particularly as both applications were heard at once.
[30] The arguments which the appellant intended to submit before the motions Judge on this question were set out in the memorandum of fact and law filed in support of the first appeal and, in the circumstances, we agreed to hear these arguments on appeal despite the fact that they were not presented before the motions Judge.
[31] The appellant has raised five grounds in support of his submission that the Appeal Board's finding of incompetence cannot stand. The first goes to procedure. The second is that the Appeal Board erred in allowing a rebuttal witness to be called on behalf of the employer after the parties had presented their evidence. The last three are based on allegations that the Appeal Board erred in its consideration of the evidence or by failing to consider relevant evidence.
[32] Turning to the first ground, the appellant contends that the warden did not have the authority to recommend his release for incompetence because he failed to consult with regional staffing and Staff Relations prior to recommending his release contrary to a Commissioner's directive, dated August 19, 1991, and specifically Annex "A" thereto which provides:
Authority [by the warden] shall be exercised only after prior consultation with regional staffing and Staff Relations for regional position, or N.H.Q. Staffing and Staff Relations for National Headquarters positions.
[33] The Appeal Board dealt with this submission as follows at page 118 of its reasons:
There is also no merit to the appellant's allegation that I must allow this appeal because the Warden did not consult with regional staffing before deciding to release the appellant. The directives state that the Warden has the delegated authority to recommend the release of an employee on the grounds of incompetence but that he must consult with regional staffing and staff relations before doing so (exhibit D-95). Although the Department's representative stated that the Warden testified at the appeal hearing that he did consult with regional staffing, my notes show no record of any such statement. The only evidence in that matter is that he sent a copy of the Report of the Board of Inquiry to Ms. de Loat of Staff Relations. This cannot be construed as a consultation. In my view, however, this is a minor irregularity which does not vitiate the Warden's recommendation to release the appellant.
The appellant contends that the requirement to consult was not a minor irregularity and that as a result of this failure, the warden's recommendation was of no force or effect.
[34] I note, however, that there is no finding made by the Appeal Board that no consultation took place. Although the hearing was recorded, the transcript was not made part of the record, and the parties are agreed that the state of the evidence before the Appeal Board on this issue must be ascertained from what is said in the above quoted passage. Bearing this in mind, the only findings made in that passage are first, that the warden did not testify that he consulted and second, that "the only evidence in that matter" is that copy of the Report of the Board of Inquiry was provided to Staff Relations which in itself did not amount to consultation. The evidence so described does not establish that consultation took place but neither does it establish that consultation did not take place.
[35] According to paragraph 4 of the Commissioner's directive, every warden, including the warden of the Edmonton Institution, has the delegated authority to recommend that staff be released on grounds of incompetence. To the extent that the appellant intended to demonstrate that this authority was not properly exercised in this instance because the warden failed to consult, it was incumbent upon him to lead evidence to that effect.
[36] However, the Appeal Board concluded that the warden made no assertion on this question and that "the only evidence in that matter" is that the Report of the Board of Inquiry was sent to Staff Relations. One must conclude from these findings that counsel for the appellant did not confront the warden with his alleged failure to consult during the course of his testimony and did not otherwise establish that consultation had not taken place. That is the only inference which can be drawn from the above quoted passage. The record as presently constituted does not support a conclusion that the warden acted outside the confines of the Commissioner's directive.
[37] The second ground of attack against the decision of the Appeal Board is that it improperly admitted the rebuttal evidence of a witness produced by the employer, a psychologist named Mr. Bennett. The appellant alleges that the Appeal Board compounded this error by using the evidence of this witness for purposes other than the one for which it had been admitted.
[38] The Appeal Board allowed the testimony in question despite the objection of the appellant. The Board stated at page 85 of the reasons:
Mr. Wayne Bennett was called as a rebuttal witness for the Department. The appellant's representative objected to having Mr. Bennett called at this point in time, that is after the appellant had presented his own evidence. The Department's representative explained that Mr. Bennett was called at this time since the purpose of his testimony was only to discredit the appellant. I agreed to hear Mr. Bennett at this time on the condition that he only addressed issues aimed at attacking the credibility of the appellant. I added, however, that the appellant could call any other witness to refute Mr. Bennett's evidence if he wished.
[39] According to the appellant, rebuttal evidence can only be called to contradict new facts, not to adduce evidence that should have been presented during the employer's case-in-chief.
[40] There is no merit to this argument. Quite aside from the fact that the Appeal Board is not bound by technical rules of evidence, the Appeal Board in this instance did not err in admitting this evidence to discredit the appellant.
[41] The appellant during his testimony denied having released information to the press about the psychological profile of an inmate (reasons at page 73). The inmate in question was a patient of Mr. Bennett and Mr. Bennett explained during his testimony why he was of the view that the appellant had released the information in question despite his denial.
[42] The appellant alleges that even if the testimony of Mr. Bennett was properly admitted, the Appeal Board erred in using this evidence to hold that he had a poor working relationship with his peers. In this regard, there was plenty of evidence to that effect already before the Board (see the evidence of Mr. Headrick, Dr. King, warden Linklater and Ms. Mitts as described by the Appeal Board at pages 16, 37, 40 and 42 of its reasons respectively). Furthermore, the appellant remained at liberty to introduce evidence of his choice to counter the testimony of Mr. Bennett.
[43] In my view, no unfairness can be said to result from the interim ruling made by the Appeal Board allowing the rebuttal evidence of Mr. Bennett or in the use that was made of this evidence.
[44] The remaining three attacks made by the appellant against the Appeal Board's finding of incompetence go to the weighing of the evidence. Specifically, the appellant claims that the Appeal Board erred in holding that he was improperly involved with offenders on parole, that he did not get along with his peers, and that there were grounds for the employer's conclusion that he was incompetent.
[45] With respect to each of these findings there was evidence upon which the appeal could rest its conclusion and while the appellant disagrees with the outcome, he has not shown that the Appeal Board committed any error in concluding as it did.
[46] For these reasons, I would dismiss the two appeals with costs.
"Marc Noël"
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
Karen R. Sharlow J.A."