PUBLIC SERVICE |
Labour Relations |
McElrea v. Canada (Attorney General)
T-829-01
2003 FCT 774, Kelen J.
23/6/03
8 pp.
Judicial review of decision of Public Service Commission Investigator dismissing complaints of harassment, abuse of authority filed by applicant against John Banigan, Assistant Deputy Minister, Industry Canada--Applicant, employee at Industry Canada since 1986, seconded to International Business Opportunities Centre (IBOC) in management capacity--Consultant with Canadian Centre for Management Development determined applicant's behaviour may have been "inappropriate", briefed Mr. Banigan on findings-- Latter disciplined applicant by imposing 10-day suspension-- Applicant filing complaint with Public Service Commission (PSC) alleging investigation amounted to harassment, abuse of authority under Treasury Board's 1994 Harassment in the Work Place Policy (Policy)--Investigator acknowledged Mr. Banigan breached terms of Policy, denied applicant right to procedural fairness, but held mistakes not amounting to harassment, abuse of authority--Applicant seeking to have decision set aside--Appropriate standard of review for questions of law correctness--As for questions of fact, mixed fact and law, applicable standard patent unreasonableness when reviewing PSC investigator's decision--Deputy head's failure to properly conduct investigation may be evidence of abuse of authority, but not conclusive proof--Breach of policy not constituting breach of law so that standard of review with respect to policy breaches not correctness--Whether Investigator made patently unreasonable finding when determined Mr. Banigan's conduct did not amount to abuse of authority--No reason to interfere with determination--Abuse of authority occurs when power, authority improperly used to endanger employee's job--To be considered abuse of authority, action must be more than just flawed administrative decision--No evidence showing Mr. Banigan undertook investigation with intention of harming applicant-- Reasonable for Investigator to view events of November 1996 as preliminary stages of formal investigation--Not patently unreasonable error that justifies setting aside decision-- Application dismissed.