Fortin v. Canada (Attorney General)

Fortin v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2024-02-26 Neutral citation 2024 FCA 34 File numbers A-5-23 Decision Content Date: 20240226 Docket: A-5-23 Citation: 2024 FCA 34 [ENGLISH TRANSLATION] CORAM: LOCKE J.A. LEBLANC J.A. ROUSSEL J.A. BETWEEN: VALÉRIE FORTIN Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Québec, Quebec, on February 21, 2024. Judgment delivered at Ottawa, Ontario, on February 26, 2024. REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: LEBLANC J.A. ROUSSEL J.A. Date: 20240226 Docket: A-5-23 Citation: 2024 FCA 34 CORAM: LOCKE J.A. LEBLANC J.A. ROUSSEL J.A. BETWEEN: VALÉRIE FORTIN Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT LOCKE J.A. [1] The applicant, Valérie Fortin, is seeking judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board (the Board) summarily dismissing her complaint against her employer, the Correctional Service of Canada (CSC). The complaint concerned the appointment of another person to a position that Ms. Fortin was interested in. [2] The Board dismissed the complaint because it was out of time. The Board concluded that there were no exceptional circumstances to justify extending the time limit, which is strict. [3] Ms. Fortin explained that when notice of the impugned appointment was sent (July 13, 2022), she was on sick leave in connection with post-traumatic stress disorder. She added that her doctor had told her that she could not communicate orally with her supervisors. Because of her absence from the office, she learned of the notice of the impugned appointment only on July 21, 2022. When she requested information concerning the appointment, she was offered to receive an explanation by telephone. After she said that she preferred a written explanation (presumably because of her disability), that explanation was provided to her on July 28, 2022. However, it seems that she was not satisfied with the explanation; she simply worded her question differently. [4] The time limit for making a complaint concerning the impugned appointment expired on July 28, 2022, 15 days after the date specified in the notice: section 10 of the Public Service Staffing Complaints Regulations, SOR/2006-6 (the Regulations). Ms. Fortin did not make her complaint until August 3, 2022. [5] After the complaint was filed, the CSC asked the Board to dismiss it for being out of time. The CSC opposed Ms. Fortin’s subsequent request to extend the time. After receiving Ms. Fortin’s emails dated August 9, 10 and 11, 2022, concerning the challenges caused by her disability, the Board concluded, as set out above, that she had not met the time limit for filing the complaint and that the exceptional circumstances test had not been met. In particular, the Board noted that [translation] “it was the complainant’s responsibility to file her complaint within the time allowed, and she did not explain how her disability created exceptional circumstances that prevented her from meeting the time limit.” [6] The standard of review applicable to this application is reasonableness, except in respect of issues of procedural fairness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. This means that for issues that do not involve procedural fairness, we will intervene only in the event that Ms. Fortin satisfies us that the Board’s reasons are unreasonable. It is important to note that our role is not to remake the Board’s decision. In other words, our role is not to reassess the application that was before the Board and to reach our own conclusion regarding the merits of the application. For issues of procedural fairness, we consider whether the proceeding before the Board was fair. [7] In my opinion, it was open to the Board, in light of the evidence it had before it, to find that the 15-day time limit had not been met. It was also able to conclude that there were no exceptional circumstances because of the lack of evidence concerning the nexus between her disability and the failure to respect the time limit. [8] Ms. Fortin acknowledged that she had not established that nexus before the Board, but stated that her failure to do so in itself demonstrated her disability. Even if I accepted her argument, it is my opinion that the Board could nonetheless reasonably conclude, on the evidence before it, that the exceptional circumstances test had not been met. [9] Ms. Fortin noted that she represented herself before the Board and stated that, if a hearing had been held for her request for an extension of time, she would have been advised of the importance of providing medical evidence, which she would have done. This seems to be an argument that there was a lack of procedural fairness as a result of the failure to hold a hearing before the Board made its decision. I note that section 27 of the Regulations provides that the Board is “master of the proceedings” and may determine the manner of the presentation of evidence. In my opinion, the Board had no obligation to hold a hearing. Ms. Fortin had an opportunity to file written submissions that supported her position. In the circumstances, the Board cannot be accused of breaching the duty of procedural fairness that it owed Ms. Fortin. [10] Ms. Fortin also alleges that the Board discriminated against her by failing to offer her any accommodation because of her disability. I cannot accept that argument since it is circular. Given that there was no evidence before the Board of the relevance of her disability to the failure to meet the time limit, the Board had no reason to believe that accommodation was desirable. The Board also did not err in this regard. [11] I will conclude by noting that even the medical reports submitted with Ms. Fortin’s record do not show that she was unable to meet the time limit. As it appears from her memorandum and her submissions at the hearing, I also note that much of the evidence to justify the failure to meet the time limit was not before the Board. For example, Ms. Fortin stated, at paragraphs 39 et seq. of her memorandum, that in hindsight, she is now better able to explain to the Court what her reasons for failing to meet the time limit were, in the hope that, out of fairness, this Court itself will extend the time. Unfortunately for her, as I said earlier, our role is limited to examining the decision of the Board in light of the evidence it had before it. In other words, we cannot make the decision in place of the Board in light of facts that it did not have an opportunity to consider. [12] For these reasons, and despite my sympathy for Ms. Fortin, I am of the opinion that the Board’s decision is reasonable and that it did not violate procedural fairness. I would dismiss the application, including all of the relief sought by Ms. Fortin. [13] Since the respondent did not request costs, I would not award any costs. [14] I agree with the respondent that the style of cause should be changed to replace the Commissioner of Correctional Service Canada with the Attorney General of Canada. “George R. Locke” J.A. “I agree. René LeBlanc J.A.” “I agree. Sylvie E. Roussel J.A.”t FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-5-23 STYLE OF CAUSE: VALÉRIE FORTIN v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Québec, QUEBEC DATE OF HEARING: FEBRUARY 21, 2024 REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: LEBLANC J.A. ROUSSEL J.A. DATED: FEBRUARY 26, 2024 APPEARANCES: Valérie Fortin for the applicant ON HER OWN BEHALF Daniel Côté-Finch for the respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada FOR THE RESPONDENT