ADMINISTRATIVE LAW |
Judicial Review |
De Wolfe v. Canada (Correctional Service)
T-933-02
2003 FC 1169, Blanchard J.
8/10/03
16 pp.
Judicial review of Appeals Officer's decision under Canada Labour Code, Part II (Code)--Code addresses issues of occupational health and safety applicable to employees in federal public service pursuant to Financial Administration Act, s. 11(1.1)--On May 10, 2001, applicants, correctional officers, invoked right to refuse to work under Code at Drumheller Institution (Institution)--Applicants' refusal based on dissatisfaction with staffing practice on living units 8 & 11 of Institution (alleged units understaffed in view of threats by inmates towards officers)--Whether Appeals Officer breached rules of procedural fairness in deciding dangers described by applicants (threats, increased tensions in Institution) speculative in nature and no evidence supporting alleged threat of inmate attack in past or future, and that assertion hypothetical--As to principles underlying duty of procedural fairness, Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, applied--Application of Baker criteria for procedural fairness shows parties should be given: (1) notice of issues on appeal and disclosure of any relevant documents; (2) written notice of date, time and location of hearing; and (3) meaningful opportunity to present evidence and make submissions at appeal hearing, as well as have legal representation of their choice--Contention applicant not their representative without merit--Apparent on evidence applicants not given proper or timely notice of change of venue for appeal hearing--Nothing in evidence explaining why Appeals Officer changed mind about location of hearing --Hearing did begin at 9:00 a.m. on December 12, in Calgary, not at Drumheller--Applicants did not appear in Calgary because not notified of change of venue--Attendance at Drumheller on December 12, 2001, consistent with contention had not received notice change of venue--As result, absent for significant portion of hearing when evidence adduced against position of applicants--By failing to notify applicants or representative in timely manner of change of venue, Appeals Officer failed to afford applicants this minimal level of procedural fairness--When decision made to convene hearing, then timely notice of time and place fundamental to principles of natural justice--Applicants clearly and repeatedly objected to proceeding being conducted in absence, and insisted that it begin again--Time afforded applicants to review recordings and Appeals Officer's notes clearly inadequate--At minimum, proceeding should have been adjourned to allow time for applicants to properly review material and prepare and to be present--Appeals Officer's attempts to cure lack of proper and timely notice fell short of minimal requirement of procedural fairness--Respondent arguing applicants made aware of change of venue indirectly --Nothing in evidence indicating applicant made aware of change of venue before hearing date--Circumstances surrounding adequacy of notice aggravated by fact notices to applicants consist of carbon copies of letter sent to counsel for employer--Applicants not issued separate letters--Further, letters in question sent to Institution instead of applicants' homes--Such notice clearly insufficient in circumstances-- Appeals Officer failed to fulfill duty of procedural fairness in proceeding to hold hearing without adequate notice of change of location of hearing to applicants--In doing so, denied applicants' rights to fairness--Judicial review allowed-- Financial Administration Act, 1985, R.S.C., c. F-11, s. 11(1.1) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 22)--Canada Labour Code, R.S.C., 1985, c. L-2.