Canada (Attorney General) v. Shneidman, (2007) 365 N.R. 285 (FCA)

• Judge: Sexton, Pelletier and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 17, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 365 N.R. 285 (FCA);2007 FCA 192

Can. (A.G.) v. Shneidman (2007), 365 N.R. 285 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. JN.012

Lillian Shneidman (appellant) v. Attorney General of Canada (respondent)

(A-169-06; 2007 FCA 192)

Indexed As: Canada (Attorney General) v. Shneidman

Federal Court of Appeal

Sexton, Pelletier and Malone, JJ.A.

May 17, 2007.

Summary:

An investigation was commenced into allegations against an employee of the Canada Customs and Revenue Agency (CCRA). The investigator prepared a report in which he indicated that the allegations had been substantiated. The employee was asked to prepare a written response. The CCRA offered the employee the opportunity to review an unredacted copy of the report on the basis that she should read it alone, without the assistance of her union representative and without taking notes. The CCRA also offered the employee the opportunity to view a redacted copy of the report with her union representative. The employee requested the opportunity to review an unredacted copy of the report with her union representative prior to submitting a response. The request was denied. The employee did not prepare a response. Her employment was terminated. The employee unsuccessfully grieved her termination. The employee referred the grievance to adjudication. The employee raised a preliminary objection, asserting that her termination was void ab initio due to violations of article 17.02 of the collective agreement because she was denied union representation at disciplinary hearings. The adjudicator assumed jurisdiction and allowed the preliminary objection. The CCRA applied for judicial review.

The Federal Court, in a decision reported at 289 F.T.R. 256, allowed the application and set aside the adjudicator's decision. The adjudicator was without jurisdiction when she heard the preliminary objection. The employee appealed.

The Federal Court of Appeal dismissed the appeal.

Labour Law - Topic 9102

Public service labour relations - Grievances - Matters referable to adjudication - Disciplinary hearings resulted in the dismissal of an employee of the Canada Customs and Revenue Agency (CCRA) - The employee's grievance was unsuccessful - The employee referred the grievance to adjudication - The employee raised a preliminary objection, asserting that her termination was void ab initio due to violations of article 17.02 of the collective agreement because she was denied union representation at the disciplinary hearings - The adjudicator assumed jurisdiction and allowed the objection - The Federal Court of Appeal affirmed that the adjudicator's decision was reviewable on the correctness standard and that the decision should be quashed - Section s. 92(1) of the Public Service Staff Relations Act provided that only those grievances presented "up to and including the final level in the grievance process" could be referred to adjudication - To refer a complaint, the employee had to have notified the CCRA of the specific nature of her complaints throughout the internal grievance procedure - It was unclear from the grievance that she intended to allege violations of article 17.02 - If she did so intend, she should have made submissions to that effect at the final level - She failed to do so and was therefore not entitled to raise the argument before the adjudicator - The adjudicator lacked jurisdiction to consider the objection.

Labour Law - Topic 9122

Public service labour relations - Grievances - Practice and procedure - [See Labour Law - Topic 9102 ].

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - [See Labour Law - Topic 9102 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Scope of review (incl. standard) - [See Labour Law - Topic 9102 ].

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, refd to. [para. 16].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 16].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 16].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 17].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 17].

Public Service Alliance of Canada v. Canadian Food Inspection Agency (2005), 343 N.R. 334; 2005 FCA 366, refd to. [para. 19].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 19].

Canada (Attorney General) v. Marinos, [2000] 4 F.C. 98; 254 N.R. 152 (F.C.A.), refd to. [para. 19].

Canada (Attorney General) v. Assh (2005), 272 F.T.R. 314; 2005 FC 734, refd to. [para. 20].

Canada (Conseil du Trésor) v. Rinaldi (1997), 127 F.T.R. 60 (T.D.), refd to. [para. 26].

Burchill v. Canada (Attorney General), [1981] 1 F.C. 109; 37 N.R. 530 (F.C.A.), refd to. [para. 26].

Schofield v. Canada (Attorney General), [2004] F.T.R. Uned. 395; 2004 FC 622, refd to. [para. 26].

Counsel:

Andrew Raven and Alison Dewar, for the appellant;

Neil McGraw, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, Ontario, for the appellant;

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

This appeal was heard at Ottawa, Ontario, on April 17, 2007, by Sexton, Pelletier and Malone, JJ.A., of the Federal Court of Appeal. Sexton, J.A., delivered the following reasons for judgment for the court on May 17, 2007.