Appleby-Ostroff v. Canada (Attorney General), 2011 FCA 84

• Judge: Sharlow, Trudel and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: Wednesday February 16, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 84;(2011), 417 N.R. 250 (FCA)

Appleby-Ostroff v. Can. (A.G.) (2011), 417 N.R. 250 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. MR.044

Shelley Appleby-Ostroff (appellant) v. Attorney General of Canada (respondent)

(A-205-10; 2011 FCA 84)

Indexed As: Appleby-Ostroff v. Canada (Attorney General)

Federal Court of Appeal

Sharlow, Trudel and Mainville, JJ.A.

March 8, 2011.

Summary:

Appleby-Ostroff grieved her dismissal from the Canadian Transportation Agency. Her primary assertion was that the conditions which applied to her were set out in the Work Force Adjustment Directive (WFA Directive), not the Executive Employment Transition Policy (the EET Policy). The Chair of the Canadian Transportation Agency dismissed the grievance. Appleby-Ostroff applied for judicial review.

The Federal Court, in a decision reported at [2010] F.T.R. Uned. 899, dismissed the application. Appleby-Ostroff appealed.

The Federal Court of Appeal allowed the appeal, set aside the decision of the Federal Court and quashed the decision denying the grievance and remitted the matter to Agency's Chair for a new determination of the grievance with the direction to apply the WFA Directive.

Crown - Topic 2208

Crown privilege or prerogative - General - Cabinet confidences (incl. cabinet discussions and discussions between cabinet and staff) - The applicant grieved her dismissal from the Canadian Transportation Agency, asserting that the work conditions which applied to her were set out in the Work Force Adjustment Directive, not the Executive Employment Transition Policy (the EET Policy) - Although the Treasury Board policy documents indicated that the EET policy was no longer in effect, the Attorney General asserted that the Treasury Board had adopted a transition measure under which the EET policy was made to apply to the applicant - The Chair of the Agency concluded that the EET policy applied as a transition measure and denied the grievance - The applicant applied for judicial review - The Attorney General opposed the application, relying on an affidavit from a Treasury Board employee - The Attorney General asserted that cabinet confidence impeded it from producing a copy of the decision adopting the transition measure (Canada Evidence Act, s. 39) - The applications judge dismissed the application, holding that the applicant had failed to prove that the EET policy was not part of her employment terms - The Federal Court of Appeal allowed an appeal - Absent specific legislation to the contrary, it was inconsistent with principles of fairness and good faith to empower the Treasury Board to determine the terms and conditions of an employee's work without disclosing them to the employee, particularly in the event of a dispute as to the scope of their application - Where the existence of a decision adopting the transition measure was being questioned, the Attorney General had to prove its existence through cogent and authoritative evidence - It was not for the applicant to disprove something over which she had no control or direct knowledge - The fact that the publicly available documents indicated that the EET policy was no longer in effect raised a prima facie presumption - If the documents were wrong or incomplete, the Attorney General had to submit the proper evidence required to contradict their terms - The Attorney General's confidence assertion failed where no certification was provided under s. 39 - The affidavit evidence did not cure the refusal to provide an authoritative copy of the decision for several reasons - The principles of transparency and accountability were not promoted by allowing government officials to claim "secret" undisclosed exceptions to publicly available policies and rules affecting individual rights absent clear statutory authority to do so - See paragraphs 24 to 39.

Crown - Topic 2208

Crown privilege or prerogative - General - Cabinet confidences (incl. cabinet discussions and discussions between cabinet and staff) - Section 39 of the Canada Evidence Act empowered a federal minister or the Clerk of the Privy Council to object to the disclosure of information by certifying in writing that the information constituted a confidence of the Queen's Privy Council for Canada - The Federal Court of Appeal stated that the reference to or use of s. 39 to gain a tactical advantage in litigation was especially frowned upon - See paragraph 35.

Crown - Topic 2243

Crown privilege or prerogative - Production of documents - Certificate of Crown Minister or Privy Council Clerk - [See first Crown - Topic 2208].

Crown - Topic 5128

Officials and employees - Appointment and employment - Termination of employment - General - [See first Crown - Topic 2208].

Crown - Topic 7220.05

Examination of public documents - Freedom of information - Bars - Confidences of the Queen's Privy Council for Canada - [See both Crown - Topic 2208].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security (third party rule) - [See both Crown - Topic 2208].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - Appleby-Ostroff grieved her dismissal from the Canadian Transportation Agency - Her primary assertion was that the conditions which applied to her were set out in the Work Force Adjustment Directive (WFA Directive), not the Executive Employment Transition Policy (the EET Policy) - The Chair of the Canadian Transportation Agency dismissed the grievance - Appleby-Ostroff's application for judicial review was dismissed - Appleby-Ostroff appealed - The Federal Court of Appeal stated that it agreed with the applications judge's determination that the standard of review was correctness - The identification of the working conditions which applied to Appleby-Ostroff fell outside the Chair's expertise as a grievance adjudicator under ss. 207 and 208 of the Public Service Labour Relations Act - The Chair recognized that he had no expertise to ascertain the applicable working condition and he therefore relied entirely on the advice of employees of the Treasury Board and the Canada Public Service Agency to reach his decision - In such circumstances, no deference was owed to the Chair - Moreover, the Chair was not an independent adjudicator, but rather a senior representative of the employer - Deference on questions of law in the circumstances raised on this appeal should not be extended to a person who was not independent from the employer - See paragraphs 20 to 23.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 20].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 20].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al., [2006] 3 F.C.R. 610; 345 N.R. 374; 2006 FCA 31, refd to. [para. 20].

Assh v. Canada (Attorney General), [2007] 4 F.C.R. 46; 356 N.R. 263; 2006 FCA 358, refd to. [para. 23].

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 35].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 38].

Counsel:

Dougald E. Brown, for the appellant;

Richard Fader, for the respondent.

Solicitors of Record:

Nelligan O'Brien Payne LLP, Ottawa, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on February 16, 2011, by Sharlow, Trudel and Mainville, JJ.A., of the Federal Court of Appeal. Mainville, J.A., delivered the following reasons for judgment for the court on March 8, 2011.