Burgess v. Canada (Attorney General)

Burgess v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2006-05-02 Neutral citation 2006 FCA 159 File numbers A-598-05 Decision Content Date: 20060502 Docket: A-598-05 Citation: 2006 FCA 159 CORAM: NOËL J.A. NADON J.A. EVANS J.A. BETWEEN: CARL JAMES BURGESS Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 2, 2006. Judgment delivered from the Bench at Ottawa, Ontario, on May 2, 2006. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20060502 Docket: A-598-05 Citation: 2006 FCA 159 CORAM: NOËL J.A. NADON J.A. EVANS J.A. BETWEEN: CARL JAMES BURGESS Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 2, 2006) EVANS J.A. [1] This is an appeal by Carl Burgess of a decision of Gibson J. of the Federal Court dismissing an application for judicial review of a decision of an Adjudicator of the Public Service Staff Relations Board (as it then was). The Adjudicator had denied Mr Burgess's grievance that the employer had refused his request for leave without pay for personal needs contrary to Article 17.10 of the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada. This provides that such a request for leave, of more than three months and not exceeding one year, shall be granted, "subject to operational requirements." [2] The decision of the Adjudicator is reported as Burgess v. Treasury Board (Department of Indian Affairs and Northern Development), 2004 PSSRB 164, and Gibson J.'s decision as Burgess v. Canada(Attorney General), 2005 FC 1562. [3] The employer submitted no evidence to the Adjudicator. However, the Adjudicator relied on the evidence of Mr Burgess to conclude that the refusal of leave was warranted. In particular, that Mr Burgess was a knowledgeable and experienced employee in a unit where morale was low, there had been a re-organization, and several staff members had resigned. Mr Burgess had also stated in a written proposal which he had put to the employer in support of his request for leave, that he was the only employee with the knowledge to perform certain tasks. [4] It was common ground that the standard of review to be applied to the Adjudicator's findings of fact under paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, is patent unreasonableness. Applying this standard to the evidence before the Adjudicator provided by Mr Burgess, we are of the view that there was sufficient evidence to enable him to draw from it the inferences that he did, and to conclude that the employer's refusal to grant the request for leave was reasonable. [5] Counsel for Mr Burgess also argued that the Adjudicator made a reviewable error by failing to have regard in his reasons to the fact that the employer did not replace Mr Burgess in the two years following the refusal of leave. We do not agree. [6] There was no evidence about the non-replacement following Mr Burgess's resignation after he was refused leave. For example, there was no evidence as to whether the employer had tried, and failed, to fill Mr Burgess's position in the Forest Resources Division of the Department of Indian Affairs and Northern Development in the Yukon. Nor was there evidence on whether the services provided by the employer had declined because of a shortage of staff following Mr Burgess's resignation. [7] Hence, we cannot conclude that this post-refusal fact was so important in demonstrating that the employer's refusal was unreasonable that the Adjudicator erred in not discussing it in his reasons. [8] Finally, we wish to say that we are at a loss to understand why the employer has been so reluctant to be forthright in explaining to both Mr Burgess and the Adjudicator the bases of its decision to refuse to grant leave without pay because of "operational requirements". In our opinion, this is not an appropriate way for the employer either to deal with employees or to participate in a proceeding before an Adjudicator. [9] For these reasons, the appeal will be dismissed. The employer requested costs but, in the circumstances of this case, costs will not be awarded. "John M. Evans" J.A. F EDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-598-05 (APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED NOVEMBER 18, 2005, DOCKET NO. T-2249-04.) STYLE OF CAUSE: Carl James Burgess v. Attorney General of Canada PLACE OF HEARING: Ottawa DATE OF HEARING: May 2, 2006 REASONS FOR JUDGMENT OF THE COURT BY: Noël, Nadon and Evans JJ.A. DELIVERED FROM THE BENCH BY: Evans J.A. APPEARANCES: Mr. Steven Welchner FOR THE APPELLANT/ Mr. Neil McGraw FOR THE RESPONDENT SOLICITORS OF RECORD: Welchner Law Office Ottawa, Ontario FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General FOR THE RESPONDENT