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A Failed Judicial Review by Terminated Employee Who Threatened Violence

May 5, 2024

An employee of Health Canada stated that she would soon “snap” and “commit violence” toward her manager and was later terminated for cause following an investigation and disciplinary hearing. The employee applicant grieved the decision to the Federal Public Sector Labour Relations and Employment Board, who upheld the employer’s decision. The Federal Court confirmed the Board’s decision as reasonable and procedurally fair.

Administrative law – Decisions reviewed – Labour and employment boards – Termination; Judicial review – Decisions reviewed – Boards and tribunals – Appeals and leave to appeal – Procedural requirements and fairness – Standard of review – Correctness – Reasonableness

Wepruk v. Canada (Attorney General), [2024] F.C.J. No. 526, Federal Court of Appeal, March 21, 2024, M.J.L. Gleason, M. Biringer and E. Walker JJ.A.

This case concerns the judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board (the “Board”) to dismiss the applicant’s grievance and uphold the employer’s termination of the applicant.

The applicant worked at Health Canada for 12 years. Following her manager’s refusal of a leave request, the applicant wrote an e-mail to her bargaining agent representative saying that one day soon she would “snap” and commit violence towards her manager. She was terminated for cause following an investigation and disciplinary hearing. The applicant grieved the termination decision to the Board. The Board reviewed the applicant’s grievance afresh and upheld the employer’s decision.

The Court reviewed the Board’s decision on a standard of reasonableness, citing Vavilov, and reviewed the applicant’s procedural fairness arguments on a standard of correctness, describing the question as “whether the applicant knew the case to meet and had a full and fair chance to respond.”

The Court found that the Board’s decision was reasonable and the process was fair. In reaching this decision, the Court found that the Board reasonably focused their analysis on the appropriateness of termination as a consequence of the applicant’s misconduct, and whether the applicant’s perception of harassment and a toxic work environment were mitigating factors, following the line of analysis set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518. In the eyes of the Court, the Board’s decision bore the hallmarks of reasonableness: justification, transparency and intelligibility and that the Board meaningfully grappled with the evidence of harassment and the applicant’s state of mind, which were the cornerstones of the applicant’s case.

In respect of procedural fairness arguments, the applicant argued she was denied discovery in Board proceedings, was not provided a copy of a transcript, took issue with the order of proceedings and being subject to the burden of proof in establishing mitigating factors. The Court found that the latter was clearly established by case law. It found that no request for discovery was made by the applicants’ counsel, and there was no requirement for the transcript. Further, the Board’s reasons showed that the applicant fully understood the case she had to meet and had a full and fair opportunity to respond.

The application for judicial review was dismissed.

This case was digested by Roshni Veerapen of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: May 5, 2024.

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