Citizens' Representative (Nfld. and Lab.) v. Newfoundland and Labrador Housing Corp. et al., (2009) 291 Nfld. & P.E.I.R. 128 (NLTD)

• Judge: Green, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 04, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2009), 291 Nfld. & P.E.I.R. 128 (NLTD)

Citizens Representative v. NHLC (2009), 291 Nfld. & P.E.I.R. 128 (NLTD);

    898 A.P.R. 128

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. AU.013

Office of the Citizens' Representative (applicant) v. Newfoundland and Labrador Housing Corporation (respondent) and Her Majesty's Attorney General (first intervenor) and Canadian Union of Public Employees and its Local 1860 (second intervenor)

(2007 01T 5034; 2009 NLTD 123)

Indexed As: Citizens' Representative (Nfld. and Lab.) v. Newfoundland and Labrador Housing Corp. et al.

Newfoundland and Labrador Supreme Court

Trial Division

Green, J.

August 4, 2009.

Summary:

A citizen employed by the Newfoundland and Labrador Housing Corporation (NLHC) pleaded guilty to sexual assault. The assault did not occur while the citizen was working or was otherwise acting in a capacity which could be said to have been representing NLHC. The victim of the assault was not a client or employee of NLHC. Nevertheless, NLHC suspended the citizen from his employment for 10 months. The citizen's union challenged the suspension. As a result, a "full and final" settlement agreement was reached between the union and NLHC, whereby the suspension was reduced to six months. Following the suspension, the citizen returned to work. Over two years later, the citizen filed a complaint with the Office of the Citizens' Representative. NLHC objected to the Citizens' Representative's jurisdiction to investigate and report on the complaint because, inter alia, it had already been the subject of a grievance process. The Citizen's Representative applied for a declaratory order determining the question of jurisdiction. The NLHC was named as the respondent. The Attorney General of Newfoundland and Labrador was granted intervenor status.

The Newfoundland and Labrador Supreme Court, Trial Division, held that the citizen was not a "person who is or may be aggrieved" within the meaning of s. 15 and, accordingly the jurisdiction of the Citizens' Representative was not engaged. The issue of costs could, on application of any party made within 15 days, be further spoken to, but in the event that no application was made, each party was to bear their own costs.

Editor's Note: Since the hearing of this matter Chief Justice Green has been appointed Chief Justice of Newfoundland and Labrador. This judgment is being filed in his capacity as ex officio judge of the Supreme Court of Newfoundland and Labrador, Trial Division, where the application was heard.

Ombudsman - Topic 1402

Jurisdiction - General - Declaratory relief - A citizen was suspended for 10 months from his employment with a provincial Crown corporation - His union challenged the suspension - A settlement agreement was reached whereby the suspension was reduced to six months - Over two years later, the citizen filed a complaint with the Office of the Citizens' Representative - The employer objected to the Citizens' Representative's jurisdiction to investigate and report on the complaint because, inter alia, it had already been the subject of a grievance process - The Citizen's Representative applied pursuant to s. 21 of the Citizens' Representative Act for a declaratory order determining the question of jurisdiction - The Newfoundland and Labrador Supreme Court, Trial Division, stated that s. 21 gave the Citizens' Representative the right to seek a clarification, at any time, of the parameters of his jurisdiction instead of waiting to respond to an anticipated legal challenge by way of judicial review or otherwise from someone affected by a proposed or ongoing investigation - The employer questioned the Citizens' Representative's jurisdiction to conduct the investigation on which he had embarked - It was appropriate that the Citizen's Representative brought the application in the form that he did - See paragraph 10.

Ombudsman - Topic 1402

Jurisdiction - General - Declaratory relief - Section 21 of the Citizens' Representative Act provided that "Where a question arises as to the jurisdiction of the Citizen's representative to conduct an investigation or class of investigations under this Act, he or she may apply to the Trial Division for a declaratory order determining the question." - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "In dealing with a request for a declaratory order under s. 21 the court will often be unable to, and in any event generally should not, answer the jurisdictional questions posed in the abstract. The order should be made with reference to the factual circumstances giving rise to the jurisdictional question in the first place." - See paragraph 11.

Ombudsman - Topic 1461

Jurisdiction - Power to investigate - General - The Newfoundland and Labrador Supreme Court, Trial Division, reviewed provisions of the Citizens' Representative Act and concluded that "the scope of the Citizens' Representative's investigatory gaze is very wide. Subject to the specific limits set out in s. 19, he may investigate administrative decisions and acts on their merits and even where the complainant has another alternative remedy available and where the decision complained about is expressed to be final or not subject to appeal or judicial review. In principle he may do this years after the alleged act of bad administration occurred. He is ... a 'watch dog designed to look at the entire workings of administrative laws' including 'scrutiny of the work done by various tribunals which form a necessary part of such administrative laws' in order to 'bring the lamp of scrutiny to otherwise dark places'." - See paragraphs 21 to 37

Ombudsman - Topic 1461

Jurisdiction - Power to investigate - General - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "The requirement [under s. 15 of the Citizens' Representative Act] that the matter complained of must relate to 'a matter of administration' underscores an important limit on the Citizens' Representative's investigatory powers: the area to be investigated must fall within the executive branch of government and the agencies which further executive policies; if matters can be said to relate to the other branches of government (legislative and judicial) they are off limits. ... That said, within the field of administrative decision-making there is a wide ambit encompassed within the Citizens' Representative's legitimate scrutiny." - See paragraphs 55 and 56.

Ombudsman - Topic 1463

Jurisdiction - Power to investigate - Administration or administrative defined - A citizen was suspended for 10 months from his employment with Newfoundland and Labrador Housing Corporation (NLHC) - His union challenged the suspension - A settlement agreement was reached whereby the suspension was reduced - Over two years later, the citizen filed a complaint with the Office of the Citizens' Representative - NLHC objected to the Citizens' Representative's jurisdiction to investigate and report on the complaint - The Citizen's Representative applied for a declaratory order determining the question of jurisdiction - The issue arose as to whether the matter complained of related to a "matter of administration" as required by s. 15 of the Citizens' Representative Act - The Newfoundland and Labrador Supreme Court, Trial Division, held that "the decision to impose discipline on the Citizen was made in furtherance of corporate policies even though the decision amounted to a specific case of employee discipline. It can be said to amount to the application of a government agency's employment policies. The inclusion of NLHC within the schedule to the Act conferring the Citizens' Representative's jurisdiction indicates that it was intended that he have investigative authority over the application of policies of this agency whether or not its activities have commercial characteristics. As well, there is no exclusion for the field of employment relations and policies. ... Accordingly, the decision, act or omission about which the citizen complains is a decision, act or omission that related to a matter of administration by a department or agency within the meaning of s. 15." - See paragraphs 63 and 64.

Ombudsman - Topic 1469

Jurisdiction - Power to investigate - Complainant or person aggrieved - Section 15 of the Citizens' Representative Act provided that "The Citizens' representative may, on a written complaint or on his or her own initiative, investigate a decision or recommendation made, including a recommendation made to a minister, or an act done or omitted, relating to a matter of administration in or by a department or agency of the government, or by an officer, employee or member of the department or agency, where a person is or may be aggrieved." - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "The fact that s. 15 talks of a person who is 'or may be' aggrieved does not allow for completely subjective belief as to the sense of grievance. In my view, 'may be' in this context merely allows for an investigation into future threatened harm. That harm, however, must still be of a type that a reasonable person could regard as a potential threatened grievance." - See paragraph 71.

Ombudsman - Topic 1469

Jurisdiction - Power to investigate - Complainant or person aggrieved - A citizen was suspended from his employment with a provincial Crown corporation - His union challenged the suspension - A settlement agreement was reached whereby the suspension was reduced - Over two years later, the citizen filed a complaint with the Office of the Citizens' Representative - The employer objected to the Citizens' Representative's jurisdiction - The Citizen's Representative applied pursuant to s. 21 of the Citizens' Representative Act for a declaratory order determining the question of jurisdiction - The Newfoundland and Labrador Supreme Court, Trial Division, held that the Citizens' Representative lacked jurisdiction where the employee was not an aggrieved person under s. 15 of the Act - A litigant's consent to a settlement removed the litigant's ability to claim that he or she was aggrieved - The notion of being aggrieved involved the idea of being wronged, hurt, offended or treated unjustly in a manner that continued to be unresolved and called for a further remedy, resolution or treatment - A voluntary settlement did not fit that concept - It might be otherwise if some vitiating factor were potentially present, such as misrepresentation, fraud, duress or improper influence or if there was a settlement under protest or objection made at the time of the settlement or prior to the s. 15 complaint - Such circumstances did not exist here - It might also be otherwise if the complaint was about procedural fairness - Here, the focus of the Citizens' Representative's investigation was on the merits of the disciplinary decision - As such, the voluntary settlement should be regarded as determinative - It did not matter that the citizen was not expressly a party to the settlement - The union's entry into the settlement on the citizen's behalf bound the citizen to the result and could be said, on the basis of an agency relationship, to amount to his consent to the resolution - See paragraphs 65 to 92.

Ombudsman - Topic 1470

Jurisdiction - Power to investigate - Decision, act, recommendation or omission - A citizen was suspended for 10 months from his employment with a provincial Crown corporation - His union challenged the suspension - A settlement agreement was reached whereby the suspension was reduced - Over two years later, the citizen filed a complaint with the Office of the Citizens' Representative - The employer objected to the Citizens' Representative's jurisdiction to investigate and report on the complaint - The Citizen's Representative applied for a declaratory order determining the question of jurisdiction - The employer and the citizen's union asserted that the governmental acts that could be subject to a complaint under s. 15 of the Citizens' Representative Act ("decision, recommendation, act or omission") implied a unilateral act on the part of the government and that the event complained of here (a mutually agreed settlement agreement) was not of that character - The employer also asserted that the citizen was really complaining about the union's actions in not looking out for his interest - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertions - Whether one characterized the matter being complained of as the employer's decision to discipline or its decision to enter into a settlement agreement that provided for discipline, in the end it was the employer's decision to impose, or its act in imposing, the discipline in accordance with the agreement that generated the complaint, not the subsequent reduction in the length of the suspension resulting from the settlement - The decision to suspend was the underlying trigger for the call for the investigation - That decision, in the last analysis, was a management decision attributable to the employer - See paragraphs 43 to 52.

Cases Noticed:

British Columbia Development Corp. v. Ombudsman, [1984] 2 S.C.R. 447; 55 N.R. 298, consd. [para. 20].

Workers' Compensation Board (B.C.) v. Friedmann, 1985 CarswellBC 100 (S.C.), refd to. [para. 28].

Ombudsman (Alta.) v. Human Rights and Citizenship Commission (Alta.) (2008), 443 A.R. 74; 2008 ABQB 168, refd to. [para. 36].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, not appld. [para. 39].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 41].

Human Rights Commission (N.S.) v. Halifax (Regional Municipality) (2008), 264 N.S.R.(2d) 61; 847 A.P.R. 61; 2008 NSCA 21, refd to. [para. 41].

Citizens' Representative (Nfld. & Lab.) v. Newfoundland and Labrador (Minister of Environment and Labour) (2004), 240 Nfld. & P.E.I.R. 64; 711 A.P.R. 64; 2004 NLSCTD 143, affd. (2005), 244 Nfld. & P.E.I.R. 112; 726 A.P.R. 112; 2005 NLCA 7, refd to. [para. 55].

Harrup v. Bayley (1856), 6 E. & B. 218 (Q.B.), refd to. [para. 75].

Statutes Noticed:

Citizens' Representative Act, S.N.L. 2001, c. C-14.1, sect. 15 [para. 12]; sect. 18 [para. 33]; sect. 19 [para. 31]; sect. 21 [para. 9]; sect. 24(1) [para. 29]; sect. 37 [para. 26].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006), paras. 2:3231, 9:1300 [para. 87].

de Smith, Stanley Alexander, Constitutional and Administrative Law (1971), pp. 607 to 613 [para. 18].

Schwartz, Bernard, and Wade, H. William R., Legal Control of Government (1972), c. 3 [para. 18].

Wade, H. William R., Administrative Law (3rd Ed. 1971), pp. 12 to 15 [para. 18].

Counsel:

Barry Fleming, Q.C., for the applicant;

Jamie Smith, Q.C., for the respondent;

Donna Ballard, for the first intervenor;

Susan D. Coen, for the second intervenor.

This matter was heard at St. John's, Newfoundland and Labrador, by Green, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on August 4, 2009.