Weyer

Parties/Partis: K.U. Weyer v. Her Majesty the Queen

Court # Cour: A-665-85

Judgment/Jugement Date: 1988-02-16

REASONS FOR JUDGMENT

MAHONEY J.:

The Applicant seeks to set aside the determination of S.J. Hershorn, an Appeal Board established under section 31 of the Public Service Employment Act, who dismissed his appeal against the recommendation of the deputy head of his department to the Public Service Commission that he be released by reason of his incompetence in the performance of the duties of his position. Section 31 provides:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position he occupies or is incapable of performing those duties and should

(a) be appointed to a position at a lower maximum rate of pay, or

(b) be released,

the deputy head may recommend to the Commission that the employee be so appointed or released, as the case may be.

(2) The deputy head shall give notice in writing to an employee of a recommendation that the employee be appointed to a position at a lower maximum rate of pay or be released.

(3) Within such period after receiving the notice in writing mentioned in subsection (2) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head concerned, or their representatives, are given an opportunity of being heard, and upon being notified of the board's decision on the inquiry the Commission shall,

(a) notify the deputy head concerned that his recommendation will not be acted upon, or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee,

accordingly as the decision of the board requires.

(4) If no appeal is made against a recommendation of the deputy head, the Commission may take such action with regard to the recommendation as the Commission sees fit.

(5) The Commission may release an employee pursuant to a recommendation under this section and the employee thereupon ceases to be an employee.

The applicant was employed as a research scientist with the National Hydrology Research Institute of the Department of Energy, Mines and Resources.

It is understandable, and perhaps inevitable, that the applicant has reacted to the recommendation as a reflection on his competence as a scientist rather than his competence as an employee. He deserves our sympathy and understanding since his competence as a scientist, per se, seems not to be in doubt. Before dealing with issues which are pertinent to an application under section 28 of the Federal Court Act, I am, therefore, impelled to recite the following passage from page 105 of the Appeal Board's decision. Mr. Williams was the applicant's counsel before the Board.

...the expert scientific evidence adduced by Mr. Williams is impressive as to the quality of his unfinished Pine Point report and the utility of all of his Pine Point studies to other scientists working in more than one scientific discipline. I go as far as to say that if Dr. Weyer's competence as a scientist were to be assessed on the basis of his publications produced prior to joining the department, and also on the basis of the quality of his scientific reports taken as a whole and assessed without regard to the reasonable expectations that may be held by management concerning his performance of the specified duties of his position, then the available evidence placed before me would establish that Dr. Weyer is regarded as a capable scientist by a number of scientific experts working in subject areas closely bound up with his own subject specialty, some working within and others outside the Public Service of Canada.

Case, Vol. 24, p. 3820.

The hearing of the appeal occupied 21 days between December 10, 1984 and April 19, 1985, inclusive. The employer's case in chief took up the first three days and officially closed December 12. It reopened for 1 1/2 hours on January 16 to permit a corrected exhibit to be entered and cross-examined upon. The balance of the hearing was taken up by the Applicant's presentation of his case and by argument. Receipt of evidence concluded April 4.

No transcript of the proceedings was prepared. A taped record was made. It is said to be of mixed quality, some parts being entirely unintelligible, none being of "studio quality". Nevertheless, some pertinent extracts from the tapes have found their way into our record. The tapes were reviewed by Jeanne Pagnan in preparing her affidavit. Some extracts were read verbatim into the record of her cross-examination and the gist of others was described. Since no objection was taken at the time, I infer that those readings and descriptions are accurate.

The applicant filed his own affidavit and that of Thomas F.G. Williams, his counsel before the Board, setting forth the factual background relied on as the basis for this section 28 application. Lengthy portions of both those affidavits were struck out prior to our hearing as being irrelevant to any issue that might properly be dealt with under section 28 of the Federal Court Act. The Applicant and Williams were not cross-examined.

The Respondent filed in reply the affidavits of D.H. Lennox and Ms. Pagnan, both of whom were cross-examined. Lennox deposed to two matters only, on neither of which we called the Respondent to comment. Pagnan had been the employer department's representative throughout the Board's hearing.

When our hearing recessed toward the end of the Applicant's presentation, we had heard him on all points but his Charter argument and were able to identify the issues, aside from that alleged under the Charter, which appeared to have been both established in fact and to afford, prima facie, a basis upon which this section 28 application might arguably succeed. I shall describe some of the grounds upon which the Respondent was not heard but am content to let the decision not to hear the Respondent speak for itself as to others. As we were in deciding not to call upon the Respondent, so in dealing with the remaining issues, I have very much in mind the injunction, expressed by Dickson, J., as he then was, in Kane v. U.B.C., [1980] 1 S.C.R. 1105 at 1113, that:

A high standard of justice is required when the right to continue in one's profession or employment is at stake.

The grounds upon which we heard the Respondent were:

1. That the absence of provision for the Applicant to subpoena witnesses to testify before the Appeal Board was a denial of the rights guaranteed him by section 7 of the Canadian Charter of Rights and Freedoms.

2. That the Applicant was denied natural justice in that the Appeal Board may have received evidence in his absence.

3. That he was denied natural justice in that he was refused appropriate adjournments.

4. That he was denied natural justice in that the employer was allowed to split its case.

Before dealing with any of those, I want to deal briefly with the unequal opportunity alleged by the Applicant in the cross examination of witnesses since it was, prima facie, among the more serious grounds for the section 28 application. A good deal of the evidence was scientific and many of the witnesses were scientists. Williams, the Applicant's counsel, is not a scientist; he is a union official. Pagnan, the employer's counsel is not a highly qualified scientist although she had some formal scientific education. At the time she was a personnel officer. It was alleged that the Applicant, a scientist, was refused the right personally to cross-examine the employer's witnesses during the presentation of its case while the Applicant and other scientists called by him were permitted to be cross-examined both by Pagnan and by scientifically qualified persons attached to her team, on occasion more than one being allowed to cross-examine the same witness. That such cross-examination occurred is not in doubt, vid. Case Appendix II.

According to Williams, the refusal to permit the applicant to intervene in the examination occurred on December 11. The direction that permitted the employer to cross-examine as it did was made January 16 on Pagnan's application. Williams did not depose to objecting to the direction while Pagnan deposed that he did not object. She also deposed that the Applicant had never sought the same opportunity during the employer's presentation of its case in chief but that, on one or two occasions, the Chairman had refused to permit the Applicant personally to interupt Williams while the latter was cross-examining. That description is entirely consistent with the Applicant's evidence he "tried to pose cross-examining questions". We inferred that, had the opportunity to have the Applicant personally conduct cross-examination been sought and refused, they would have said so. They described other matters in their affidavits precisely and fully. Pagnan also deposed, and it is not denied, that the multiple cross-examination was not repetitious but that different questioners covered different ground.

The Applicant had the burden to establish, on a balance of probabilities, the facts upon which his application to set aside the Appeal Board's decision should succeed. While, at first blush, this allegation appeared very serious, after considering all the evidence we concluded that the onus had not been discharged. I now return to the enumerated grounds.

1. The Charter Argument

Section 7 of the Canadian Charter of Rights and Freedoms provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The proceeding before the Appeal Board under subsection 31(3) of the Public Service Employment Act was concerned with the Applicant's employment status. It appears that some courts, at least at trial level, have construed the right to liberty to embrace a right to work. A useful, current, survey of the cases may be found in Wilson et al. v. Medical Services Commission of B.C., [1987] 3 W.W.R. 48 at 69 ff.

Insofar as this Court is concerned, the matter has been authoritatively determined. In Smith, Kline & French v. A.G. of Canada, [1987] 1 F.C. 274 at 313, Strayer, J., stated:

In my view the concepts of "life, liberty and security of the person" take on a colouration by association with each other and have to do with the bodily well-being of a natural person. As such they are not apt to describe any rights of a corporation nor are they apt to describe purely economic interests of a natural person.

On appeal, 78 N.R. 30 at 34, Hugessen, J., speaking for this Court said:

Insofar as concerns the arguments based upon ...the alleged denial of the rights to life, liberty and security of the person under s. 7 of the charter, I am in complete agreement with the trial judge's conclusions and with the reasoning by which he arrives at them. If anything he has given those arguments a fuller treatment than they deserve; any additional comments on my part would be superfluous.

Since rights guaranteed by section 7 of the Charter were not at risk in the Appeal Board proceeding, there is no merit in the Applicant's submission.

2. Possible Receipt of Evidence in Absence of Applicant

The Applicant cited four instances in which it is said the Appeal Board may have received evidence in his absence, and that of his counsel, of which he was not informed and had no opportunity to make representations. The first two are the events to which Lennox deposed.

a. Lennox, a witness who had previously testified, Director of the Research Institute and the Applicant's immediate superior, encountered the Chairman in an elevator and asked him how long it took for a decision to be rendered in such a matter. He was informed that in a straightforward case it would be about 3 months; in a complex matter longer. Lennox thought the Applicant and his counsel would be interested and immediately informed them of the conversation. No objection was taken at the time.

b. A departmental employee, van Everingden, was in Ottawa on other business. Lennox knew the Applicant wished to have him testify. Lennox contacted the Chairman to ascertain if his testimony could be received the next day and was advised to have him at the hearing. In the event, he was not called by the Applicant until later.

c. On the second day of the hearing, December 11, 1984, the Chairman mentioned the name of a witness, Scott, of whom, the Applicant now says, the Chairman could not possibly have known if he had not been in private conversation with the employer's representatives. Scott was, in fact, called to testify by the employer the following day, December 12. Pagnan, being cross-examined May 25, 1987, was unable to explain how the name may have come to the Chairman's attention in advance of his being called. This incident was not specifically raised by the Applicant or Williams in their affidavits. It is evident that it was noted only when the tape was reviewed during Pagnan's cross-examination. If it was remarked upon when the comment was made, that remark would seem not to have been recorded on the tapes reviewed.

d. After the employer's written representations had been received, the hearing adjourned and the Chairman and employer's representatives withdrew to permit the Applicant and his counsel to prepare argument in reply. The adjournment lasted several hours. During the adjournment, the Chairman entered the hearing room on a number of occasions to ascertain progress and reported on the visits to the employer's representatives.

The last of these was the only incident upon which we asked the Respondent to comment since, factually, it appeared inextricably linked to the alleged failure to allow a proper adjournment to prepare argument in reply.

It may be, given the high standard of justice required in such circumstances, that the failure to provide an Appeal Board with a clerk or registrar through whom administrative matters may be communicated will prove to have been a false economy in another case. As is well within the experience of most judges of this Court, the current practice of conducting judicial proceedings in conventional office buildings inevitably leads to casual encounters with counsel, witnesses and parties in the common facilities and areas of those buildings. Such encounters are not infrequently accompanied by brief conversations, usually about the weather or the speed of the elevator. In my experience they are always a bit uncomfortable but never of questionable propriety. As to Scott, there seem to me a good many possibilities as to how the Chairman became aware one day that he was to be called the next which do not give rise to a reasonable suspicion of impropriety. The Chairman did ask the parties to tell him what witnesses they would be calling as part of their opening statements, Case, App. I, Vol. 2, p. 160.

What the law demands is that, unless empowered to act ex parte, which the Chairman clearly was not, an appellate tribunal must not hold private interviews with witnesses or hear evidence in the absence of a party whose conduct is in issue. If it does, the Court will not inquire whether the evidence did work to the party's prejudice; it is sufficient that it might have. vid. Kane v. U.B.C., supra, p. 1113 ff.

That law is so well known now as to be trite. The Court ought not lightly infer that a tribunal experienced in such matters, as an Appeal Board constituted under the Public Service Employment Act, would disregard it. No such inference can properly be drawn when the circumstances of the private meetings have been credibily explained and are such as to lead to the inference that it is improbable that evidence was either received or discussed. In my opinion, there is not, in the present case, a reasonable basis for the inference that the private contacts between the Chairman and the employer's representatives or Lennox, a witness, constituted the interview of a witness or that evidence was discussed or received. The factual basis for this ground of attack has simply not been established.

3. Refusal of Adjournments

Two instances were cited whereof we required the Respondent to comment only on the second. As to the first, the Applicant complained that an adjournment had not been granted, late in the day, when Williams was tired, while he was questioning an important witness. That was on December 12, the day the employer's case was to close. The tape discloses that, earlier in the day, Williams had expressly agreed that the examination of the particular witness would be completed that day, Case, App. I. Vol. 2, p. 253. The Chairman simply held him to that commitment. There is no basis upon which we might conclude that to have been at all unreasonable.

The second instance involved the adjournment, already alluded to, to permit the Applicant to prepare a reply argument. The Applicant had been given from April 4 to 10 to prepare his argument, which he submitted in writing, and the employer had then been given until April 19 when it, too, presented written argument. There is conflict as to certain details in the affidavits of Williams and the Applicant on the one hand and Pagnan on the other which I am unable to resolve but I do not consider that crucial. Williams, largely corroborated by the Applicant, says that he requested the opportunity to prepare the reply in writing; Pagnan denies that such a request was ever made. Williams asserts that this refusal was a departure from an original directive that the parties would be free to present either written or oral argument. The tape recording of the Chairman's directive as to the conduct of the hearing appears to have been quite intelligible. It is quoted at length, Case, App. I. Vol. 2, pp. 160 to 162. There is no reference to written argument.

I have perused the written arguments in chief with care. The employer's argument is basically a seriatim response to the Applicant's. It raises no issues not raised by the Applicant. Indeed, since the employer was of the view that the Applicant's competence as a scientist was not the issue, it did not deal with all of his points, concentrating on his alleged chronic failure to complete assignments within the time allotted. In view of the purpose of and proper limitations on reply argument and the nature of the arguments in chief here, it appears to me that it was not unreasonable to require the Applicant to reply orally after affording him an appropriate adjournment.

Nor am I persuaded that the adjournment actually granted was insufficient. The employer finished presenting its argument at about 2 p.m., April 19. The adjournment to prepare the reply, initially for an hour, eventually extended to 6 p.m. The Applicant concluded his presentation at about 9 p.m.

4. Split Case

This issue turns on the acceptance into evidence, during the presentation of the Applicant's case, of a document produced by the Respondent which, it is said, was very damaging to the Applicant. The Chairman had directed at the outset of the hearing that the employer department present its entire case before the Applicant was called upon. It presented Exhibit D-38, entitled "Report of the Technical Advisory Committee Working Group of the Northwest Territories Water Board", dated November 1984. The exhibit consisted only of the Introduction to the Report which stated, inter alia, "the Working Group has reviewed the information referenced in Appendix 8 and summarized in Appendices 1 to 6", and also Appendix 7, entitled "Conclusions and Recommendations". Appendices 1 to 6 and 8 were not included; it is their later receipt that is alleged to have constituted a split case. Those appendices, which seem not to have been assigned an exhibit number, aggregate upward of 80 unnumbered pages about half of which are maps, graphs, tables and photographs.>

The Committee was concerned with an application for renewal of a license for pit dewatering held by Pine Point Mines Limited. In dealing with that, the Committee considered, among other things, a study undertaken by the Applicant. The Applicant's failure to complete that study and the report expected to follow, as required by his employer, was a major basis for the recommendation that he be released.

Put briefly, Ex. D-38 stated the Committee's conclusion that the Applicant's "report should be interpreted with caution" and went on to state why, while some of the additional appendices contain discussion supporting the conclusions.

This is a subject upon which extensive extracts from the tapes of the hearing are reproduced in the course of Ms. Pagnan's cross-examination, Case, App. I, Vol. 1, pp. 87 to 92. It is clear that the Chairman did not permit the Respondent to introduce the further material as part of its case in chief. Rather, it was admitted to permit the Applicant to be cross-examined thereon because the Applicant's evidence led the Chairman to suggest that an independent assessment of the value of his Pine Point work would be useful. When it was presented, the Chairman was properly sceptical of the evidentiary value of the conclusions of a committee in the absence of identification of individual authors of particular conclusions. I do not find it necessary to consider the latitude the Chairman had to receive evidence he considered reliable. He did not mention the evidence in his decision and, as I have already recited, he came to a contrary conclusion as to the scientific value of the Applicant's Pine Point studies. He obviously preferred the evidence of the Applicant and his witnesses to that of the faceless Committee.

In my opinion, the appendices were properly admitted for the purpose of cross-examination. It was not case splitting at all.

Conclusion

I would dismiss this section 28 application.

P.M. Mahoney J.F.C.C.

I agree - John J. Urie J.

I agree - A.J. Stone J.