Canada (Attorney General) v. Tipple, (2011) 392 F.T.R. 201 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: April 11, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 392 F.T.R. 201 (FC);2011 FC 762

Can. (A.G.) v. Tipple (2011), 392 F.T.R. 201 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.020

Attorney General of Canada (applicant) v. Douglas Tipple (respondent)

(T-1295-10)

Douglas Tipple (applicant) v. Attorney General of Canada (respondent)

(T-1315-10; 2011 FC 762)

Indexed As: Canada (Attorney General) v. Tipple

Federal Court

Zinn, J.

June 24, 2011.

Summary:

In 2005, Public Works and Government Services Canada hired Tipple to be responsible for real property in a strategy that was implemented to reduce costs relating to accommodation for the public service. Tipple signed a three year contract at an annual salary of $360,000. A trip to the U.K. by Tipple and another resulted in a "media storm" of allegations. In August 2006, Tipple's employment was terminated. An adjudicator upheld in part Tipple's grievance of the termination under the Public Service Labour Relations Act, awarding him a total of $1,358,454.58 in damages, including $125,000 as damages for "psychological injury", $250,000 as damages for "loss of reputation" and $45,322.03 as damages for "obstruction of process". Both parties sought judicial review.

The Federal Court allowed the Crown's application, setting aside the awards of damages for psychological injury, loss of reputation and obstruction of process. The court allowed Tipple's application only with respect to an award of interest.

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - [See first Labour Law - Topic 9165 ].

Damages - Topic 5706

Contracts - Breach of contract - Injured feelings or emotional upset - [See first Labour Law - Topic 9165 ].

Damages - Topic 6752

Contracts - Employment relationship or contract - Breach by employer - Loss of reputation or publicity - [See second Labour Law - Topic 9165 ].

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - In 2005, Public Works and Government Services Canada (PWGSC) hired Tipple to be responsible for real property in a strategy that was implemented to reduce costs relating to accommodation for the public service - Tipple signed a three year contract at an annual salary of $360,000 - A trip to the U.K. by Tipple and another resulted in a "media storm" of allegations - In August 2006, Tipple's employment was terminated - An adjudicator upheld in part Tipple's grievance of the termination under the Public Service Labour Relations Act (PSLRA), awarding him a total of $1,358,454.58 in damages - The adjudicator held that he had no jurisdiction to award costs, but, having found that PWGSC had unduly lengthened the hearing by failing to make timely disclosure and to comply with disclosure orders, awarded Tipple damages for "obstruction of process" equal to the additional legal costs incurred ($45,322.03) - The Federal Court held that the award for obstruction of process was a veiled costs award - By characterizing the award as damages for non-compliance, the adjudicator was attempting to do indirectly that which he had no jurisdiction to do directly, namely, to award costs - The adjudicator was correct in finding that he had no jurisdiction under s. 228(2) of the PSLRA to award costs - The order awarding damages for obstruction of process, as an award of costs, was set aside - See paragraphs 80 to 103.

Labour Law - Topic 9165

Public service labour relations - Discipline and dismissal of civil or public servants - Remedies for wrongful dismissal or suspension - In 2005, Public Works and Government Services Canada (PWGSC) hired Tipple to be responsible for real property in a strategy that was implemented to reduce costs relating to accommodation for the public service - Tipple signed a three year contract at an annual salary of $360,000 - A trip to the U.K. by Tipple and another resulted in a "media storm" of allegations - In August 2006, Tipple's employment was terminated - An adjudicator upheld in part Tipple's grievance of the termination under the Public Service Labour Relations Act, awarding him a total of $1,358,454.58 in damages, including $125,000 as damages for "psychological injury" - The Federal Court set aside the award of $125,000 - The amount awarded was not reasonable because (1) there was no explanation as to the basis for determining the amount; (2) Tipple offered no evidence that he required medical treatment or was provided with a psychological diagnosis; (3) nothing suggested that the injury was "significant, long lasting, and ongoing"; and (4) the size of the award was significantly disproportionate to previous awards - However, as PWGSC had conceded that some amount was appropriate, the matter was sent back to the Public Service Labour Relations Board for determination of the proper amount - See paragraphs 36 to 61.

Labour Law - Topic 9165

Public service labour relations - Discipline and dismissal of civil or public servants - Remedies for wrongful dismissal or suspension - In 2005, Public Works and Government Services Canada (PWGSC) hired Tipple to be responsible for real property in a strategy that was implemented to reduce costs relating to accommodation for the public service - Tipple signed a three year contract at an annual salary of $360,000 - A trip to the U.K. by Tipple and another resulted in a "media storm" of allegations - In August 2006, Tipple's employment was terminated - An adjudicator upheld in part Tipple's grievance of the termination under the Public Service Labour Relations Act, awarding him a total of $1,358,454.58 in damages, including $250,000 for "loss of reputation" - The Federal Court set aside the award of $250,000 - The adjudicator had expanded the employer's duty of good faith beyond the parameters set out in the case law, creating a new duty according to which an employer had a positive obligation to protect an employee's reputation - Such a positive duty did not exist - There was no legal or factual basis for the award - There was no evidence that PWGSC had "attacked" Tipple's reputation - Had there been any legal basis for the award, the amount awarded was unreasonable - Even if Tipple's reputation was damaged, the damage was caused by a reporter and a newspaper - If PWGSC was liable at all, that liability was founded in contract law and Tipple had a duty to mitigate - As he had failed to do so, any award would have been greatly reduced - See paragraphs 62 to 79.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - Tipple was terminated from his employment with Public Works and Government Services Canada - An adjudicator upheld in part Tipple's grievance of the termination under the Public Service Labour Relations Act, awarding him a total of $1,358,454.58 in damages - Both parties sought judicial review - One of the issues related to the adjudicator's determination that he had no jurisdiction to award costs to the successful party - The Federal Court determined that the standard of review on this issue was correctness - In conducting the standard of review analysis, the court distinguished between the questions of the jurisdiction to award costs at all, which was a true question of jurisdiction, and the scope of the authority to award costs, which was not - Here, the question was the jurisdiction, itself, which was a broad question of the adjudicator's authority, pointing to a correctness standard - While the existence of a privative clause and the purpose of the statutory scheme (efficient settlement of disputes) pointed to a reasonableness standard, the final factor, the expertise of the decision-maker, pointed to correctness - See paragraphs 27 to 35.

Cases Noticed:

Canada (Attorney General) v. Canada, [2008] N.R. Uned. 283; 2008 FCA 351, refd to. [para. 24].

Canada (Attorney General) v. Morgan and Canadian Human Rights Commission, [1992] 2 F.C. 401; 135 N.R. 27 (F.C.A.), refd to. [para. 24].

Canada (Attorney General) v. Mowat (2009), 395 N.R. 52; 2009 FCA 309, refd to. [para. 28].

Taub v. Investment Dealers Association of Canada et al. (2009), 255 O.A.C. 126; 2009 ONCA 628, refd to. [para. 28].

Abdoulrab et al. v. Labour Relations Board (Ont.) et al. (2009), 251 O.A.C. 28; 2009 ONCA 491, refd to. [para. 28].

Canada Post Corp. v. Canadian Union of Postal Workers (2010), 364 F.T.R. 177; 2010 FC 154, refd to. [para. 29].

Bonamy v. Canada (Attorney General) (2010), 378 F.T.R. 71; 2010 FC 153, refd to. [para. 29].

Office of the Superintendent of Bankruptcy v. MacLeod - see Laperrière v. MacLeod et al.

Laperrière v. MacLeod et al. (2010), 362 F.T.R. 189; 2010 FC 97, refd to. [para. 29].

Matthews v. Canadian Security Intelligence Service, [1999] C.P.S.S.R.B. No. 31, refd to. [para. 30].

Ménard v. Public Service Alliance of Canada, 2010 PSLRB 124, refd to. [para. 30].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 31].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2009), 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 31].

Canada (Attorney General) v. Amos (2009), 355 F.T.R. 181; 2009 FC 1181, refd to. [para. 34].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 36].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 36].

Lumsden v. Manitoba (2009), 236 Man.R.(2d) 130; 448 W.A.C. 130; 2009 MBCA 18,refd to. [para. 48].

Brien v. Niagara Motors Ltd., [2009] O.A.C. Uned. 639; 2009 ONCA 887, refd to. [para. 48].

Cooke v. HTS Engineering Ltd., [2009] O.T.C. Uned. W24 (Sup. Ct.), refd to. [para. 48].

Bru v. AGM Enterprises Inc. et al., [2008] B.C.T.C. Uned. F23; 2008 BCSC 1680, refd to. [para. 48].

Beggs v. Westport Foods Ltd., [2010] B.C.T.C. Uned. 833; 2010 BCSC 833, refd to. [para. 48].

Chapell v. Canadian Pacific Railway Co., [2010] A.R. Uned. 531; 2010 ABQB 441, refd to. [para. 48].

Pagliaroli v. Rite-Pak Produce Co. et al., [2010] O.T.C. Uned. 3729; 2010 ONSC 3729, refd to. [para. 48].

Piresferreira et al. v. Ayotte et al. (2010), 263 O.A.C. 347; 2010 ONCA 384, refd to. [para. 48].

Zesta Engineering Ltd. v. Cloutier et al., [2010] O.T.C. Uned. 5810; 2010 ONSC 5810, refd to. [para. 49].

Ward v. Vancouver (City) et al. (2010), 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 50].

Martin v. Goldfarb et al. (1998), 112 O.A.C. 138; 41 O.R.(3d) 161 (C.A.), refd to. [para. 52].

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. 59].

334156 Alberta Ltd v. Minister of National Revenue (2006), 300 F.T.R. 74; 2006 FC 1133, refd to. [para. 64].

Lockwood v. Walter (B & D) Trucking Ltd., [2010] C.L.A.D. No. 172, refd to. [para. 72].

Autocar Connaisseur Inc. v. Marcil, [1995] D.A.T.C. No. 1032, affd. (1996), 123 F.T.R. 304 (T.D.), refd to. [para. 64].

Ribeiro v. Canadian Imperial Bank of Commerce et al. (1989), 67 O.R.(2d) 385 (H.C.), varied (1992), 13 O.R.(3d) 278 (C.A.), refd to. [para. 72].

Wygant v. Regional Cablesystems Inc., [2001] C.L.A.D. No. 427, refd to. [para. 72].

Stone v. British Columbia (Minister of Health), 2008 BCHRT 96, dist. [para. 82].

Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok (1988), 87 N.R. 178 (F.C.A.), refd to. [para. 87].

Thibodeau v. Air Canada (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 98].

Statutes Noticed:

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 228(2) [para. 26].

Counsel:

Stephen Victor, Q.C., David Cutler and Christopher Rootham, for the applicant;

Michael Ciavaglia and Claudine Patry, for the respondent.

Solicitors of Record:

Victor Ages Vallance LLP, Ottawa, Ontario, for the applicant;

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

These applications were heard at Ottawa, Ontario, on April 11, 2011, by Zinn, J., of the Federal Court, who delivered the following reasons for judgment on June 24, 2011.