Canada (Attorney General) v. Basra, (2008) 327 F.T.R. 305 (FC)

• Judge: Pinard, J.
• Court: Federal Court (Canada)
• Case Date: May 07, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 327 F.T.R. 305 (FC);2008 FC 606

Can. (A.G.) v. Basra (2008), 327 F.T.R. 305 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. MY.020

Attorney General of Canada (applicant) v. Balkar Singh Basra (respondent)

(T-1473-07; 2008 FC 606)

Indexed As: Canada (Attorney General) v. Basra

Federal Court

Pinard, J.

May 21, 2008.

Summary:

After being charged with sexual assault, Basra was suspended indefinitely without pay from his position as a correctional officer pending the completion of a disciplinary investigation. An adjudicator upheld Basra's grievance regarding the suspension, holding that the suspension was not justified and that Basra was to be reinstated and was entitled to his pay, retroactive to one month after the suspension began. The Crown applied for judicial review.

The Federal Court allowed the application. The matter was remitted to a different adjudicator for redetermination on the merits.

Labour Law - Topic 9102

Public service labour relations - Grievances - Matters referable to adjudication - [See Labour Law - Topic 9128 ].

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - After being charged with sexual assault, Basra was suspended indefinitely without pay from his position as a correctional officer pending the completion of a disciplinary investigation - An adjudicator upheld Basra's grievance regarding the suspension, holding that the suspension was not justified and that Basra was to be reinstated and was entitled to his pay, retroactive to one month after the suspension began - The Crown applied for judicial review - At issue was whether the adjudicator had erred when he concluded that he had jurisdiction over Basra's grievance under s. 209(1)(b) of the Public Service Labour Relations Act because the suspension was a disciplinary action - The Federal Court allowed the application - The adjudicator failed to consider whether the employer's intention in suspending Basra was to punish him - Rather, the adjudicator merely considered that, due to the length of time the investigation had taken, the suspension became disciplinary by default - This was a serious error - The adjudicator applied the wrong test - This was sufficient to warrant the court's intervention - The matter was remitted to a different adjudicator for redetermination on the merits - See paragraphs 14 to 19.

Labour Law - Topic 9174

Public service labour relations - Discipline and dismissal of civil or public servants - Discipline - What constitutes disciplinary action - [See Labour Law - Topic 9128 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Scope of review (incl. standard) - After being charged with sexual assault, Basra was suspended indefinitely without pay from his position as a correctional officer pending the completion of a disciplinary investigation - An adjudicator upheld Basra's grievance regarding the suspension, holding that the suspension was not justified and that Basra was to be reinstated and was entitled to his pay, retroactive to one month after the suspension began - The Federal Court allowed the Crown's application for judicial review - Regarding the standard of review, the court held that the question of whether the adjudicator erred in concluding that the matter was disciplinary and that he, therefore, had jurisdiction over the issue, was reviewable on the standard of correctness concerning the applicable legal test but on the standard of reasonableness as to the application of that test - See paragraphs 11 to 13.

Labour Law - Topic 9355

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Error - Failure to consider a relevant factor - After being charged with sexual assault, Basra was suspended indefinitely without pay from his position as a correctional officer pending the completion of a disciplinary investigation - An adjudicator upheld Basra's grievance regarding the suspension, holding that the suspension was not justified and that Basra was to be reinstated and was entitled to his pay, retroactive to one month after the suspension began - The Crown applied for judicial review - At issue was whether the adjudicator had erred when he concluded that Basra's grievance was justified - The Federal Court allowed the application - In coming to his conclusion, the adjudicator had ignored evidence that suggested that Basra had misled police in their investigation - The adjudicator considered the evidence on that issue to be second hand or double hearsay, but he did not weigh it, either by giving it little or no weight - Therefore, the adjudicator failed to address the evidence that directly contradicted his conclusion - This error was serious enough to warrant the court's intervention - The matter was remitted to a different adjudicator for redetermination on the merits - See paragraphs 20 to 28.

Labour Law - Topic 9356

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Error of law - [See Labour Law - Topic 9128 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

Canada (Attorney General) v. Shneidman (2007), 365 N.R. 285; 2007 FCA 192, refd to. [para. 12].

Archambault v. Canada Customs and Revenue Agency, [2005] F.T.R. Uned. 108; 2005 FC 183, affd. [2006] N.R. Uned. 112; 2006 FC 63, refd to. [para. 12].

Saskatchewan River Bungalows and Fikowski v. Maritime Life Assurance, [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321, dist. [para. 15].

Henderson v. Henderson, [1843-60] All E.R. Rep. 378; 67 E.R. 313 (Ch. D.), dist. [para. 15].

Canada (Attorney General) v. Frazee (2007), 319 F.T.R. 192; 2007 FC 1176, refd to. [para. 17].

Canada (Attorney General) v. Grover (2007), 307 F.T.R. 294; 2007 FC 28, refd to. [para. 18].

Counsel:

Richard Fader, for the applicant;

James Baugh and Christopher Foy, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

McGrady & Company, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on May 7, 2008, by Pinard, J., of the Federal Court, who delivered the following reasons for judgment on May 21, 2008.