Teeluck v. Canada ( Treasury Board )
T-1825-98
MacKay J.
6/10/99
15 pp.
Judicial review of adjudicator's decision, on behalf of Public Service Staff Relations Board, applicant dismissed for just cause-Applicant employee of Corrections Service-Female co-worker (complainant) alleging applicant asking her if she had books in pocket, feeling her breast, squeezing her nipple-Applicant denying incident occurred-Third employee who was present at time of alleged incident testifying saw, heard nothing-During Warden's investigation fourth employee came forward alleging similar earlier incident with applicant-Warden finding applicant guilty of sexual harassment, terminating employment-Applicant filing grievance, subsequently dismissed by adjudicator-Now alleging adjudicator improperly considering some evidence, testimony not allowable as evidence in court of law, eg. applicant's, third worker's refusal, complainant's agreement, to take "lie detector" test-Alleging adjudicator improperly considering Corrections Service investigators' report without hearing from all witnesses whose accounts contained therein in form of unsworn statements-Application dismissed-(1) Canada (Attorney General) v. Cleary (1998), 16 F.T.R. 283 (F.C.T.D.) holding standard of review of decision of adjudicator under Public Service Staff Relations Act patent unreasonableness, reflection of standard earlier enunciated for review of Board's decisions when its statute contained privative clause-Repeal of privative clause not meaning PSSRB decisions now more easily set aside-Absence of privative clause not implying high standard of scrutiny where other factors bespeak low standard: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982-High standard of deference to be accorded to PSSRB's decisions on matters within special expertise-Court will not intervene unless finding decision patently unreasonable-(2) Adjudicator having all powers, rights, privileges of PSSRB-Public Service Staff Relations Act, s. 25(c) giving PSSRB power to receive such evidence as in its discretion it sees fit, whether or not admissible in court of law-Adjudicators' decisions on evidentiary matters not generally reviewable unless patently unreasonable, irrational-Reference to complainant's willingness to take lie detector test in adjudicator's summary of employer's evidence not patently unreasonable-Not factor upon which adjudicator relied in setting out conclusion, reasons-Not patently unreasonable for adjudicator to take into account evidence of fourth employee, which adjudicator found to be "strikingly similar"-Also not patently unreasonable to consider existence, impact of "rat code" which discouraged reporting on conduct of fellow officers-While not directly relevant, not unreasonable to comment on it-Not patently unreasonable for adjudicator to consider reports of internal investigations as part of record-Reference to investigators' conclusion, incident as alleged by complainant probably happened, as "strong enough in the circumstances" concerning investigators' mandate, not indicating fettering of adjudicator's discretion-Failure to consider complainant's activity following incident in assessing credibility, and that applicant acquitted of charge of sexual assault, not rendering decision patently unreasonable-Reference in conclusion that applicant's claim that complainant set him up not supported by any evidence produced by applicant-Not demonstrating onus on applicant to establish innocence-Adjudicator's reasons supporting conclusion applicant sexually assaulting complainant-Not ignoring appropriateness of penalty-Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 25(c).