Bremsak v. Prof. Institute, 2013 FCA 214

Judge:Trudel, Stratas and Mainville, JJ.A.
Court:Federal Court of Appeal (Canada)
Case Date:May 14, 2013
Jurisdiction:Canada (Federal)
Citations:2013 FCA 214;(2013), 449 N.R. 200 (FCA)
 
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Bremsak v. Prof. Institute (2013), 449 N.R. 200 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2013] N.R. TBEd. SE.010

Professional Institute of the Public Service of Canada (appellant) v. Irene J. Bremsak (respondent)

(A-554-12; 2013 FCA 214; 2013 CAF 214)

Indexed As: Bremsak v. Professional Institute of the Public Service of Canada

Federal Court of Appeal

Trudel, Stratas and Mainville, JJ.A.

September 16, 2013.

Summary:

A federal public servant (Bremsak) made a complaint to the Public Service Staff Relations Board respecting the Professional Institute of the Public Service of Canada (the Institute). The Institute suspended Bremsak from four elected offices and her appointed position as shop steward pursuant to a policy that provided for the automatic temporary suspension from Institute positions if an Institute member made an application or a complaint to an outside body about an internal matter. Bremsak filed a complaint, submitting that her suspension violated s. 188(e)(ii) of the Public Service Labour Relations Act. The Board allowed the complaint and directed the Institute to rescind the application of the policy to Bremsak, restore Bremsak to her positions, announce to its members and officials that she had been reinstated subject to the normal operation of the Institute's constitution and bylaws, and amend the policy to ensure compliance with the Act. Bremsak requested certification of the order. The Institute opposed certification and applied for judicial review of the order. The Institute unsuccessfully sought a stay of the order (see [2009] N.R. Uned. 115). Meanwhile, the Institute's executive committee considered two investigation reports into harassment allegations made against Bremsak by five members of the Vancouver Branch Executive and sanctioned Bremsak by suspending her membership for five years effective immediately. Bremsak challenged the decision by filing two complaints. Bremsak reiterated her certification request. The Institute again opposed the request, asserting that certification would serve no purpose given Bremsak's five year suspension. The Board granted certification and filed the order with the Federal Court. Bremsak applied ex parte for the Institute to appear for a contempt hearing.

A Prothonotary of the Federal Court, in a decision not reported in this series of reports, ordered Bremsak to serve the Institute with the application. The parties made written and oral submissions.

A Prothonotary of the Federal Court, in a decision reported at [2010] F.T.R. Uned. 433, held that Bremsak had not made out a prima facie case of contempt respecting her reinstatement to two of the elected positions whose terms had expired by the time that the Board's order was filed with the court. Also, in light of a decision of the Board that the Institute's revised policy was satisfactory and complied with its decision, a prima facie case of contempt respecting the policy's amendment was not made out. However, she had made a prima facie case respecting her reinstatement to two positions whose terms had not expired and the Board's publication of the announcement. A contempt hearing ensued.

The Federal Court, in a decision reported at 405 F.T.R. 254, found the Institute guilty of contempt. The court concluded that reinstatement was not appropriate where the issue of Bremsak's suspension from membership was outstanding. The court gave the parties six weeks to reach a settlement on the appropriate remedy, subject to the court's approval. If a settlement was not reached the court would seek submissions from the parties on the appropriate remedy. The Institute appealed.

The Federal Court of Appeal, in a decision reported at 432 N.R. 351, dismissed the appeal. A settlement was not reached and the parties made submissions on the appropriate remedy.

The Federal Court, in a decision not reported in this series of reports, ordered the Institute to pay a fine of $400,000 within 30 days. The court made no order as to costs. However, if a settlement could be reached, the fine would be reduced by the amount of the settlement. The Institute appealed the sentence. Bremsak moved for an extension of time to cross-appeal the remedy order so that she could seek solicitor and client costs or, alternatively, costs at the usual scale to be assessed under the highest column in Tariff B. She estimated her costs under column V at approximately $14,000.

The Federal Court of Appeal allowed the appeal and ordered the Institute to pay a fine of $250,000 within 65 days. The court granted an extension of time to cross-appeal and allowed the cross-appeal without costs, and set costs payable to Bremsak for the contempt proceedings at $4,000 inclusive of disbursements and tax.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - A federal public servant (Bremsak) made a complaint to the Public Service Staff Relations Board (the Board) respecting the Professional Institute of the Public Service of Canada (the Institute) - The Institute suspended Bremsak from four elected offices and her appointed position as shop steward pursuant to a policy that provided for the automatic temporary suspension if a complaint was made to an outside body about an internal matter - Bremsak filed a complaint, challenging the policy - In 2009, the Board directed the Institute to rescind the application of the policy to Bremsak, restore Bremsak to her positions, announce her reinstatement, and amend the policy - Meanwhile, the Institute considered harassment allegations made against Bremsak and sanctioned her by suspending her membership for five years - The Board's order was certified and filed with the court - The Institute was found guilty of contempt for non-compliance with the order and fined $400,000 - The Institute appealed, asserting that fine was based on the judge's finding that the breach persisted for several years - The institute asserted, inter alia, that the breach only lasted from the Board's 2009 decision to either the date of the five year suspension (i.e., six weeks) or the expiry of Bremsak's terms of office (i.e., one year) - The Federal Court of Appeal rejected the argument - Court orders continued to exist and had to be obeyed until they were set aside by legal process or an equally effective order was secured to the effect that it need not be obeyed - An order could not be impeached by a party affected by it on the basis of that party's own opinion as to its validity - See paragraphs 37 to 41.

Contempt - Topic 2647

Defences - Particular defences - Invalidity of order disobeyed - [See Contempt - Topic 684 ].

Contempt - Topic 3301

Punishment - General - Considerations - The Federal Court of Appeal set out guiding principles for judges to consider when determining a sentence for civil contempt - The court added that there was nothing in the case law to suggest that the listed principles were exhaustive - See paragraphs 35 and 36.

Contempt - Topic 3301

Punishment - General - Considerations - The Professional Institute of the Public Service of Canada (the Institute) was fined $400,000 for contempt of a certified order of the Public Service Staff Relations Board that had been filed with the court - In the remedy decision, the trial judge wrote that "The contempt by the Institute is particularly severe because it disobeyed an order of the Board" - The Institute appealed the sentence, asserting that there was no basis for finding that a breach of an order of one administrative tribunal was any more serious than a breach of an order from another tribunal or the court - The Federal Court of Appeal disagreed with the Institute's interpretation of the judge's order - The Board, as found by the judge, was the supervisory body of the Institute - Its mandate was to ensure compliance with the federal statute governing labour relations between the bargaining agent and its members - The judge's words had to be read in that context - Further contempt did not only arise through breach of an order of an administrative tribunal or court, but could arise through a range of actions which obstructed justice - Within that framework, an action which amounted to defiance of a court or tribunal order could well be considered more serious and an aggravating factor - See paragraphs 42 to 44.

Contempt - Topic 3301

Punishment - General - Considerations - The Professional Institute of the Public Service of Canada (the Institute) was fined $400,000 for contempt of a certified order of the Public Service Staff Relations Board that had been filed with the court - If the parties reached a settlement, the fine was to be reduced by the settlement amount - The Institute appealed the fine, asserting that the trial judge erred in fashioning a remedy to provoke a negotiated settlement - The Federal Court of Appeal rejected the assertion - The Institute's argument failed to acknowledge the range of objectives that the Court could properly pursue in fashioning a remedy for contempt - The Institute presumed that the quantum of the fine would have been less had settlement not been a primary objective of the judge - An appeal court had to be wary of overturning a discretionary decision of a trial judge on the basis of such a presumption - The judge observed that (1) Bremsak was entitled to be compensated and (2) compliance with the initial order was impossible - Under those circumstances, it was open to the judge to offer the contemnor the opportunity to purge its contempt through settlement - See paragraphs 65 to 74.

Contempt - Topic 3304

Punishment - Purging of contempt - [See third Contempt - Topic 3301 ].

Contempt - Topic 3304

Punishment - Purging of contempt - A federal public servant (Bremsak) made a complaint to the Public Service Staff Relations Board (the Board) respecting the Professional Institute of the Public Service of Canada (the Institute) - The Institute suspended Bremsak from four elected offices and her appointed position as shop steward pursuant to a policy that provided for the automatic temporary suspension if a complaint was made to an outside body about an internal matter - Bremsak filed a complaint, challenging the policy - In 2009, the Board directed the Institute to rescind the application of the policy to Bremsak, restore Bremsak to her positions, announce her reinstatement, and amend the policy - Meanwhile, the Institute considered harassment allegations made against Bremsak and sanctioned her by suspending her membership for five years - The Board's order was certified and filed with the court - The Institute was found guilty of contempt for non-compliance with the order and fined $400,000 - If the parties reached a settlement, the fine was to be reduced accordingly - The Institute had 30 days to pay - The Institute appealed, asserting that the judge failed to consider any mitigating factors - The Federal Court of Appeal agreed, holding that the trial judge's exercise of discretion was incomplete - The fact that the Board subsequently upheld the Institute's decision to suspend Bremsak for five years was of some relevance as a mitigating factor - The court held that a $400,000 fine was disproportionate and reduced it to $250,000 - The Institute had 65 days to pay - The court made no provision for the Institute to purge its contempt by reaching a settlement where judicial optimism had to give way to reality - See paragraphs 45 to 89.

Contempt - Topic 3305

Punishment - General - Mitigation - [See second Contempt - Topic 3304 ].

Contempt - Topic 3305

Punishment - General - Mitigation - A federal public servant (Bremsak) made a complaint to the Public Service Staff Relations Board (the Board) respecting the Professional Institute of the Public Service of Canada (the Institute) - The Institute suspended Bremsak from four elected offices and her appointed position as shop steward pursuant to a policy that provided for the automatic temporary suspension if a complaint was made to an outside body about an internal matter - Bremsak filed a complaint, challenging the policy - In 2009, the Board directed the Institute to rescind the application of the policy to Bremsak, restore Bremsak to her positions, announce her reinstatement, and amend the policy - Meanwhile, the Institute considered harassment allegations made against Bremsak and sanctioned her by suspending her membership for five years - The Board's order was certified and filed with the court - The Institute was found guilty of contempt for non-compliance with the order and fined $400,000 - The Institute appealed the fine, asserting that the judge failed to consider the fact that the Institute partially complied with the order by modifying its policy and announcing Bremsak's reinstatement - The Federal Court of Appeal held that these were not mitigating factors - The Board amended his policy not only as a result of the 2009 decision, but also because of extrinsic reasons - The court was also mindful of the nature of the original policy - The circumstances surrounding the announcement demonstrated the Institute's reluctance to comply swiftly and fully with the Board's order - See paragraphs 52 to 54.

Contempt - Topic 3305

Punishment - General - Mitigation - The Professional Institute of the Public Service of Canada (the Institute) was fined $400,000 for contempt of a certified order of the Public Service Staff Relations Board that had been filed with the court - The Institute appealed the fine, asserting that the judge failed to consider that it had attempted to comply with its legal obligations and had relied on legal advice - The Federal Court of Appeal held that the Institute's reliance on legal advice did not constitute a mitigating factor in the circumstances - The record was thin on this point and made it difficult to assess the nature of the legal advice, the extent to which the Institute relied upon it, the objective reasonableness of the reliance and the subjective evidence respecting the Institute's decision to rely on the advice - It was useful to note that where a party relied on legal advice to nourish an action or to support a defence, the party opposite should have disclosure of that advice - Otherwise, a party could try to rely on legal advice to justify its conduct without having to disclose the substance of that advice - See paragraphs 55 to 61.

Contempt - Topic 3305

Punishment - General - Mitigation - The Professional Institute of the Public Service of Canada (the Institute) was fined $400,000 for contempt of a certified order of the Public Service Staff Relations Board that had been filed with the court - The Institute appealed the fine, asserting that the judge failed to consider, as a mitigating factor, that the institute had been trying to balance the interests and legal rights of its members - The Federal Court of Appeal rejected the argument - The Institute made choices without showing that it considered the rights of the complainant (who was a member) following the Board's order - Although the complainant's complaint before the Board was successful, she had nothing to show for it - See paragraph 62.

Contempt - Topic 3315

Punishment - Fines - [See third Contempt - Topic 3301 and second Contempt - Topic 3304 ].

Contempt - Topic 5115

Practice - Hearing - Costs - A trial judge held the Professional Institute of the Public Service of Canada (the Institute) in contempt for noncompliance with an order of the Public Service Staff Relations Board that had been filed with the court - The judge reserved the question of costs - While the contempt order was being unsuccessfully appealed, the Institute and the complainant made submissions respecting the appropriate remedy - The judge issued a remedy order which was silent on the issue of costs - The complainant contacted the court respecting the alleged omission - By then the judge had retired - Another judge issued a direction stating that the court was functus officio - The Institute appealed the remedy order - The complainant moved for an extension of time to cross-appeal the remedy order so that she could seek solicitor and client costs or, alternatively, costs at the usual scale to be assessed under the highest column in Tariff B - She estimated her costs under column V at approximately $14,000 - The Federal Court of Appeal, after granting an extension, noted that the complainant had spent time and energy to defend the Board's decision - Self-litigants could be entitled to compensation, particularly if they were required to be present at a hearing and had to forego income - Considering, inter alia, the nature of the proceedings, the one-day hearing on the contempt, the judge's request for supplementary submissions, the subsequent communications with the Federal Court regarding costs, and the lateness of the cross-appeal, the court allowed the cross-appeal without costs, and set the costs payable to the complainant for the contempt proceedings at $4,000 inclusive of disbursements and tax - See paragraphs 90 to 94.

Practice - Topic 7029.2

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Delay in raising issue - [See Contempt - Topic 5115 ].

Practice - Topic 7050

Costs - Party and party costs - Entitlement to - Successful party not represented by counsel - [See Contempt - Topic 5115 ].

Practice - Topic 7464

Costs - Solicitor and client costs - Entitlement to - In contempt proceedings - [See Contempt - Topic 5115 ].

Practice - Topic 8343

Costs - Appeals - Cases where costs of appeal refused - General - [See Contempt - Topic 5115 ].

Cases Noticed:

Microsoft Corp. v. 9038-3746 Quebec Inc. et al. (2010), 403 N.R. 359; 2010 FCA 151, leave to appeal refused (2010), 416 N.R. 394 (S.C.C.), refd to. [para. 7].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 7].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1996] 1 F.C. 787; 192 N.R. 313 (F.C.A.), affd. [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 29].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 30].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 31].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 32].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 32].

Baxter Travenol Laboratories Inc. v. Cutter (Canada) Ltd., [1987] 2 F.C. 557; 81 N.R. 220 (F.C.A.), refd to. [para. 35].

Lyons Partnership, L.P. v. MacGregor (2000), 186 F.T.R. 241 (T.D.), refd to. [para. 35].

Minister of National Revenue v. Marshall (2006), 294 F.T.R. 297; 2006 FC 788, refd to. [para. 35].

Merck & Co. et al. v. Apotex Inc. (2003), 305 N.R. 68; 2003 FCA 234, refd to. [para. 35].

Wanderingspirit et al. v. Marie et al., [2006] F.T.R. Uned. 827; 2006 FC 1420, refd to. [para. 35].

Wanderingspirit v. Salt River First Nation 195 - see Wanderingspirit et al. v. Marie et al.

Desnoes & Geddes Ltd. v. Hart Breweries Ltd., [2002] F.T.R. Uned. 431; 2002 FCT 632, refd to. [para. 35].

R. v. Bernier, 2011 QCCA 228, refd to. [para. 35].

R. v. Emmelkamp (J.J.) (2013), 542 A.R. 361; 566 W.A.C. 361; 2013 ABCA 71, refd to. [para. 35].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 39].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (1991), 52 O.A.C. 151; 85 D.L.R.(4th) 694 (C.A.), refd to. [para. 39].

MacMillan Bloedel Ltd. v. Simpson et al. (1994), 43 B.C.A.C. 1; 69 W.A.C. 1; 90 B.C.L.R.(2d) 24; 113 D.L.R.(4th) 368 (C.A.), affd. in part [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161; 14 B.C.L.R.(3d) 122, refd to. [para. 39].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (1986), 59 Nfld. & P.E.I.R. 93; 178 A.P.R. 93; 39 A.C.W.S.(2d) 149 (Nfld. C.A.), refd to. [para. 40].

Veillette v. Professional Institute of the Public Service of Canada and Rogers, 2009 PSLRB 64, refd to. [para. 53].

Blair v. Consolidated Enfield Corp., [1995] 4 S.C.R. 5; 187 N.R. 241; 86 O.A.C. 245, refd to. [para. 60].

Dockside Brewing Co. et al. v. Strata Plan LMS 3837, Owners et al. (2007), 239 B.C.A.C. 33; 396 W.A.C. 33; 2007 BCCA 183, leave to appeal refused (2007), 379 N.R. 392; 262 B.C.A.C. 319; 441 W.A.C. 319 (S.C.C.), refd to. [para. 60].

Mid-West Quilting Co. v. Canada, [2007] F.T.R. Uned. 473; 2007 FC 735, refd to. [para. 61].

Apotex Inc. v. Canada (Minister of Health) et al., [2004] 2 F.C.R. 137; 243 F.T.R. 308; 2003 FC 1480, affd. (2004), 328 N.R. 83; 34 C.P.R.(4th) 289; 2004 FCA 280, refd to. [para. 61].

International Forest Products Ltd. et al. v. Kern et al. (2001), 149 B.C.A.C. 18; 244 W.A.C. 18; 2001 BCCA 48, refd to. [para. 66].

Majormaki Holdings LLP v. Wong (2009), 274 B.C.A.C. 278; 463 W.A.C. 278; 2009 BCCA 349, refd to. [para. 66].

Saskatchewan Health-Care Association et al. v. Saskatchewan Union of Nurses et al., [1999] 12 W.W.R. 240; 182 Sask.R. 248 (Q.B.), refd to. [para. 66].

Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612; 354 N.R. 201; 218 O.A.C. 339; 2006 SCC 52, refd to. [para. 68].

British Columbia Public School Employers Association v. British Columbia Teachers Federation, [2005] B.C.T.C. 1490; 2005 BCSC 1490, refd to. [para. 70].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al., [1998] 10 W.W.R. 455; 129 Man.R.(2d) 161; 180 W.A.C. 161; 162 D.L.R.(4th) 111 (C.A.), refd to. [para. 80].

Health Employers Association of British Columbia v. Facilities Subsector Bargaining Association et al., [2004] B.C.T.C. 762; 31 B.C.L.R.(4th) 124; 2004 BCSC 762, refd to. [para. 84].

Syndicat canadien des communications, de l'énergie et du papier et al. v. Métro-Média Inc. et al. (1996), 118 F.T.R. 172; 67 A.C.W.S.(3d) 899 (T.D.), refd to. [para. 84].

Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 94].

Sherman v. Minister of National Revenue, [2003] 4 F.C. 865; 304 N.R. 227; 2003 FCA 202, refd to. [para. 94].

CIT Financial Ltd. v. Western Waste Recyclers Inc., [2008] O.J. No. 2386 (Sup. Ct.), refd to. [Annex].

College of Optometrists (Ont.) v. SHS Optical Ltd. et al. (2009), 245 O.A.C. 200; 2009 ONCA 19, refd to. [Annex].

Doobay et al. v. Diamond et al. (2012), 297 O.A.C. 190; 2012 ONCA 580, refd to. [Annex].

Manitoba Teachers' Society, Local 65 v. Fort Alexander Indian Band, [1984] 1 F.C. 1109 (T.D.), refd to. [Annex].

United Food and Commercial Workers, Local 1252 v. Western Star (1995), 137 Nfld. & P.E.I.R. 43; 428 A.P.R. 43; 130 D.L.R.(4th) 538 (Nfld. T.D.), refd to. [Annex].

Union des employés de commerce, local 503 v. Baribeau et al., [1978] R.P. 338, refd to. [Annex].

Telewizja Polsat S.A. et al. v. Radiopol Inc. et al. (2006), 287 F.T.R. 136; 2006 FC 137, refd to. [Annex.].

Great Canadian Railtour Co. v. Teamsters Local Union No. 31 et al., [2012] B.C.T.C. Uned. 632; 2012 BCSC 632, refd to. [Annex].

Dursol-Fabrik Otto Durst GmbH Co. KG v. Dursol North America Inc. et al. (2006), 297 F.T.R. 301; 2006 FC 1115, refd to. [Annex].

Builders Energy Services Ltd. et al. v. Paddock (2009), 457 A.R. 266; 457 W.A.C. 266; 2009 ABCA 153, refd to. [Annex].

Counsel:

Peter Engelmann and Benjamin Piper, for the appellant;

David Donohoe, for the respondent.

Solicitors of Record:

Sack Goldblatt Mitchell LLP, Ottawa, Ontario, for the appellant;

Donohoe & Company, North Vancouver, British Columbia, for the respondent.

This appeal and cross-appeal were heard at Vancouver, British Columbia, on May 14, 2013, by Trudel, Stratas and Mainville, JJ.A., of the Federal Court of Appeal. Trudel, J.A., delivered the following reasons for judgment for the court on September 16, 2013.

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