Canada v Gatien: How the Federal Regulator for Workplace Violence handled Workplace Violence

Courts have long grappled with when to give deference to tribunals. In Canada (Attorney General) v Gatien 2016 FCA 3 [Gatien FCA], the courts return to the level of deference owed to decisions made by the Public Service Labour Relation Board (“PSLRB”). Interestingly, in Gatien FCA Ms. Gatien, who won at the PLSRB, sought judicial review of her award. The PSLRB awarded Ms. Gatien all the relief she sought, except aggravated damages. The Federal Court of Appeal (“FCA”) correctly overturned the Federal Court (“FC”) and applied the reasonableness standard to the PSLRB. The PSLRB’s holding was thus found to be within the ambit of reasonable outcomes.

The Facts

At the heart of the case is how the Federal Workers Compensation Program, Ms. Gatien’s employer, mishandled her mental distress after a member of her staff assaulted her. AB was a disruptive member of Ms. Gatien’s staff; by March 2011 Ms. Gatien was communicating with her labour relations advisor almost daily about AB’s behavior (Gatien v Canada (Attorney General) 2015 FC 543, para 5 [Gatien FC]). In May 2011, AB assaulted Ms. Gatien by pulling her hair. As a result, Ms. Gatien successfully filed a claim with the Workplace Safety and Insurance Board (“WSIB”). Two months later, AB was allowed to return to the workplace to collect her belongings. Ms. Gatien barricaded the office by taping filing cabinets shut and affixing cardboard boxes together to build a wall. She placed arrows on boxes to direct AB to her workstation (Gatier FCA, para 3). Ms. Gatien’s superior’s suspended her for ten-days for the construction of the barricade.

Public Service Labour Relation Board Decision

While Ms. Gatien’s grievance was successful, she did not receive financial damages. In Gatien v Deputy Head (Department of Human Resources and Skills Development) 2013 PSLRB 101 [Gatien PSLRB] the PSLRB reduced her ten-day suspension to an oral reprimand and she received lost wages and benefits (Gatien PSLRB, para 127). However, Ms. Gatien was not granted the $100,000 relief for aggravated damages. Vice-Chair Potter was weary of awarding aggravated damages, which have, to date, only been awarded when an employee is terminated. When Vice-Chair Potter asked Ms. Gatien’s counsel about this, the counsel was unable to furnish the PSLRB with a case where aggravated damages had been awarded in an employee suspension (Gatien PSLRB, para 90). Vice-Chair Potter did not need to rule on whether it was appropriate to award aggravated damages in the case of a suspension because the employer’s action was not egregious and in need of censure (Gatien PSLRB, para 121).

Standard of Review: Giving Deference in Labour Adjudication

At the FC, Justice O’Keefe adopted Ms. Gatien’s position on aggravated damages in the judicial review and remitted the case to the PSLRB. Bizarrely, while both the parties to the judicial review submitted that the standard of review was reasonableness, Justice O’Keefe adopted both the correctness and reasonableness standards. The FC applied the correctness standard to the PSLRB’s interpretation of damages for mental suffering in the workplace, but applied the standard of reasonableness for the PSLRB’s application of the law to the facts. The FCA correctly overturned the FC on appeal, holding that the standard of reasonableness should have been applied to the entirety of the PSLRB’s decision.

The FC erred in applying the correctness standard. In Dunsmuir v New Brunswick [2008] 1 SCR 190 [Dunsmuir], a watershed case in administrative law, the Supreme Court of Canada (“SCC”) attempted to simplify the standard of review analysis. There, the SCC held that the courts should begin their analysis by surveying existing jurisprudence. In Vaughan v Canada [2005] 1 SCR 146 [Vaughan], the SCC held that the reasonable standard ought to apply in labour tribunals. They further stated that, “where Parliament has clearly created a scheme for dealing with labour disputes, […] courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts” (Vaughan, para 39).

Even if there was not a clear precedent from the SCC, Justice O’Keefe should not have applied the correctness standard. First, the PSLRB has institutional expertise in addressing damages that stem from mental suffering in the workplace. Board members are appointed from a list of candidates created by the Chairperson, after consultation with the employer and bargaining agents (Public Service Labour Relations and Employment Board Act SC 2003, c 22, s 6). Vice-Chair Potter should have been given deference given the PSLRB’s institutional expertise. Furthermore, one of the purposes of the statutory scheme is the removal of this type of dispute from the FC. All this notwithstanding that the nature of the question itself mixed fact and law, which gives rise to deference (Dunsmuir, para 51).

Aggravated Damages: Not of Central Importance to the Legal System

Justice Gleason, writing for a unanimous FCA, correctly held that an award for aggravated damages is not a question of central importance to the legal system (Gatien FCA, para 40). Thus, the FC did not need to disaggregate and apply two standards of review. In Dunsmuir, the SCC simplified the standard of review analysis to provide greater clarity to lower courts and litigants. While there are legal questions that need to be interpreted correctly, such as constitutional questions, courts should refrain from disaggregating issues of law to substitute a preferred outcome. In Canada (Canadian Human Rights Commission) v Canada (Attorney General), [2011] 3 SCR 471 [Canadian Human Rights Commission] the SCC held that there should be deference to Tribunal’s award of compensatory damages, and that it would not “subvert the legal system, even if a reviewing court found it to be in error”(Canadian Human Rights Commission, para 25). Moreover, the assigning compensatory award falls within the PSLRB’s expertise (Gatien FCA, para 40).

Conclusion

The FC erred in applying two standards of review. Courts should only disaggregate issues in judicial review if there is a question of central importance to the legal system. Further, the FC should not have applied the correctness standard to a PSLRB decision. Not only had the SCC ruled on the level of deference to be shown to tribunals established to address employment issues, but the standard of review analysis, had it been properly applied, could only support a standard of reasonableness.