This was an appeal from a decision of the Trial Division in a judicial review of a decision of an Adjudicator under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”). The issue was whether the Adjudicator denied the appellant procedural fairness. The Trial Division Judge found no breach of procedural fairness and dismissed the judicial review. The Federal Court of Appeal allowed the appeal, set aside the decision of the Trial Division and quashed the decision of the Adjudicator.

Administrative law – Judicial review – Procedural requirements and fairness – Decisions of administrative tribunals – Adjudication – Evidence

Gale v. Canada (Treasury Board), [2004] F.C.J. No. 186, Federal Court of Appeal, January 12, 2004, Strayer, Rothstein and Sharlow JJ.A.

Mr. Gale was a correctional officer at a Saskatchewan Penitentiary. A female colleague made a complaint of sexual harassment against him. The appellant’s employment was terminated as a result of the complaint. The appellant grieved the termination and the matter was adjudicated under the PSSRA.

The case was one in which credibility was an issue. The complainant alleged sexual harassment and the appellant denied it. In the course of the proceedings, evidence was led about a separate “prisoner incident” immediately before the alleged sexual harassment. The appellant testified that everyone at the Unit who was working, would have attended at the “prisoner incident” to help deal with it. The fact that the complainant was not aware of the incident was evidence that she had left early on the day of the alleged harassment.

After evidence at the hearing was closed and during argument, the Adjudicator asked council why an employee named L. Mardell did not attend at the “prisoner incident”, presumably to test the evidence of the appellant. Because the issue appeared to be of concern to the Adjudicator, counsel for the appellant asked to re-open his case in order to call evidence on the issue raised by the Adjudicator. The Adjudicator adjourned the proceedings to allow counsel to obtain an answer to the question. Counsel returned later in the day and informed the Adjudicator that he needed more time to answer the question. It was agreed that the Adjudicator would adjourn the proceedings and await confirmation on the issue.

Just over one month later, counsel for the respondent wrote to counsel for the appellant with an answer to the question posed by the Adjudicator. Counsel for the appellant was to forward this information to the Adjudicator. However, on the same day, the Adjudicator issued his decision. It was agreed that he did so without having received any evidence respecting the issue he had previously raised.

The court held that they were unable to tell whether the issue raised by the Adjudicator which caused the adjournment may have influenced his decision. It was open to the Adjudicator to advise the parties in his decision that he considered the issue unnecessary; however, he did not do so and the court was unwilling to speculate as to why he issued a decision without waiting for the information. The court referred to the principle enunciated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 in which it was held that a denial of a right to a fair hearing always renders a decision invalid, whether or not it appears to a reviewing court that a fair hearing would have likely resulted in a different decision. In applying the reasoning in Cardinal to the case the court explained that the Adjudicator established a procedure in respect of the receipt of certain evidence and then departed from that procedure without notice. The appellant was entitled to expect that the Adjudicator would not make his decision without the evidence that he, himself, had said was of interest and which he gave the parties an opportunity to produce. The court then referred to the observation of L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 26:

This doctrine, as applied in Canada, is based upon the principle that the ‘circumstances’ affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them [the tribunal] to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

Based on this reasoning the appeal was allowed, the decision of the Trial Division was set aside and the Adjudicator’s decision was quashed.

An issue arose as to whether the matter should be remitted to the same Adjudicator or if the matter should be redetermined de novo before a different adjudicator. In this regard the court held that in spite of the procedural error, there was no suggestion of bias. As it was the Adjudicator who raised the issue that gave rise to the obtaining of evidence in question and he was in the best position to determine if the information would have an effect on his decision. The court instructed the Adjudicator to take the new evidence into account and allow the parties an opportunity to make submissions as to the effect of this information on the adjudication.

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