Gatien v. Canada (Attorney General), (2015) 479 F.T.R. 218 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: October 27, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 F.T.R. 218 (FC);2015 FC 543

Gatien v. Can. (A.G.) (2015), 479 F.T.R. 218 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. AP.066

Gisèle Gatien (applicant) v. Attorney General of Canada (respondent)

(T-1648-13; 2015 FC 543)

Indexed As: Gatien v. Canada (Attorney General)

Federal Court

O'Keefe, J.

April 27, 2015.

Summary:

Gatien was a manager in the federal public service who was physically assaulted by one of her employees (AB). AB was removed from the workplace and transferred to a different department. When Gatien was informed that AB would be returning to the workplace to collect her personal belongings, she barricaded the office so that AB could not enter. Gatien received a 10 day suspension as discipline. She filed a grievance, seeking damages for mental distress. The Public Service Labour Relations Board denied Gatien's request for damages, but reduced the 10 day suspension to an oral reprimand and ordered the employer to immediately reimburse Gatien for lost wages and benefits. Gatien applied for judicial review of the Board's refusal to award damages for mental distress.

The Federal Court allowed the application and remitted the matter to the same Board for redetermination.

Damages - Topic 1532

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

Labour Law - Topic 9165

Public service labour relations - Discipline and dismissal of civil or public servants - Remedies for wrongful dismissal or suspension - Gatien, a manager in the federal public service, began to experience behavioural issues from one of her employees (AB) in 2010, but was told by her superiors not to discipline AB - AB physically assaulted Gatien in May 2011 - AB was transferred to a different department - Gatien began to see a psychologist - In July 2011, when Gatien was informed that AB would be returning to the workplace to collect her personal belongings, she barricaded the office so that AB could not enter - Gatien went on stress leave - When she returned, the employer imposed a 10 day suspension as discipline - Gatien grieved, seeking damages for mental distress - She filed a letter from her psychologist stating that the major source of her problems was not the assault itself but the employer's refusal to recognize the harm that was done to her and to protect her from further harm in the workplace - The Public Service Labour Relations Board reduced the 10 day suspension to an oral reprimand and ordered the employer to immediately reimburse Gatien for lost wages and benefits, but found that damages for mental distress were unavailable because excessive discipline was not a "separate actionable course of conduct" - The Federal Court allowed Gatien's application for judicial review - The Board erred in law by misunderstanding the test for awarding damages - Independent actionable wrong was no longer required for a claim of mental suffering damages to succeed - The Board also erred by finding that there was no medical evidence relating to stress prior to the imposition of discipline.

Cases Noticed:

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. 20].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, folld. [para. 21].

Canada (Attorney General) v. Tipple (2012), 431 N.R. 257; 2012 FCA 158, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Canada (Attorney General) v. Robitaille, [2012] N.R. Uned. 196; 2011 FC 1218, refd to. [para. 29].

Chenier v. Treasury Board (Solicitor General Canada - Correctional Service), [2003] CPSSRB No. 24; 2003 PSSRB 27, refd to. [para. 30].

Altman v. Steve's Music Store Inc., [2011] O.T.C. Uned. 1480; 2011 ONSC 1480, refd to. [para. 31].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 31].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 32].

Piresferreira et al. v. Ayotte et al. (2010), 263 O.A.C. 347; 2010 ONCA 384, refd to. [para. 32].

Mulvihill v. Ottawa (City) (2008), 235 O.A.C. 113; 90 O.R.(3d) 285; 2008 ONCA 201, refd to. [para. 33].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 35].

Hagel et al. v. Canada (Attorney General) (2009), 352 F.T.R. 22; 2009 FC 329, affd. (2009), 402 N.R. 104; 2009 FCA 364, refd to. [para. 35].

Peck v. Parks Canada (2009), 359 F.T.R. 136; 2009 FC 686, refd to. [para. 35].

Kanagarajah v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 730; 2007 FC 2001, refd to. [para. 35].

Gauthier v. Canada (Attorney General) (2008), 378 N.R. 101; 2008 FCA 75, refd to. [para. 35].

Groulx v. Cormier et al. (2007), 325 F.T.R. 69; 2007 FC 293, refd to. [para. 35].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 35].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 35].

Canada (Attorney General) v. Clegg (2008), 380 N.R. 275; 2008 FCA 189, refd to. [para. 35].

Diallo v. Canada (Minister of Citizenship and Immigration) et al. (2007), 317 F.T.R. 172; 2007 FC 1063, refd to. [para. 35].

Stelco Inc. v. British Steel Canada Inc. et al., [2000] 3 F.C. 282; 252 N.R. 364 (F.C.A.), refd to. [para. 35].

Entertainment Software Association et al. v. Society of Composers, Authors and Music Publishers of Canada (2010), 406 N.R. 288; 2010 FCA 221, refd to. [para. 35].

Riche v. Treasury Board (Department of National Defence), [2013] CPSLRB No. 39; 2013 PSLRB 35, refd to. [para. 39].

Crowley v. Liquor Control Board of Ontario, [2011] OHRTD No. 1439; 2011 HRTO 1429, refd to. [para. 39].

Matheson v. Okanagan Similkameen School District No. 53, [2009] BCHRTD No. 112; 2009 BCHRT 112, refd to. [para. 39].

TRW Linkage & Suspension Division v. Thompson Products Employees' Assn. (Coons Grievance), 144 L.A.C.(4th) 215; 83 C.L.A.S. 271, refd to. [para. 39].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 43].

Counsel:

Paul Champ, for the applicant;

Martin Desmeules, for the respondent.

Solicitors of Record:

Champ & Associates, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Ottawa, Ontario, on October 27, 2014, before O'Keefe, J., of the Federal Court, who delivered the following judgment and reasons on April 27, 2015.