DONALD JAMES SATHER Applicant v. DEPUTY HEAD, 2016 FCA 149

Date: 20160512 Docket: A-282-15 Citation: 2016 FCA 149 CORAM: PELLETIER J.A. WEBB J.A. DE MONTIGNY J.A. BETWEEN: DONALD JAMES SATHER Applicant and DEPUTY HEAD (CORRECTIONAL SERVICE OF CANADA) Respondent Heard at Edmonton, Alberta, on May 11, 2016. Judgment delivered at Edmonton, Alberta, on May 12, 2016. REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: WEBB J.A. DE MONTIGNY J.A. Date: 20160512 Docket: A-282-15 Citation: 2016 FCA 149 CORAM: PELLETIER J.A. WEBB J.A. DE MONTIGNY J.A.

BETWEEN: DONALD JAMES SATHER Applicant and DEPUTY HEAD (CORRECTIONAL SERVICE OF CANADA) Respondent REASONS FOR JUDGMENT PELLETIER J.A. [ 1 ] Mr. Sather (the Applicant) brings this application for judicial review of the decision of an adjudicator appointed pursuant to the Public Service Labour Relations and Employment Board Act , S.C. 2013, c. 40, s. 365, dismissing his grievance of his dismissal from employment with the Correctional Service of Canada (the Employer). The adjudicator’s decision is cited as 2015 PSLREB 45 (the Decision).

The basis of the dismissal was the allegation that the Applicant committed an infraction of the Commissioner’s Code of Discipline when he committed

an act of personal or sexual harassment against another staff member by sexually assaulting the complainant. The Applicant grieved his dismissal and, while he did not testify on his own behalf, his defence was that the sexual relations between him and the complainant were consensual. He sought to establish this defence by attacking the complainant’s credibility.

[2] The adjudicator, having considered all the evidence, found that while some of the complainant’s evidence was not credible,her evidence that she did not consent to having sexual relations with the Applicant was credible. He went on to find that he was entitledto draw an adverse inference from the fact that the Applicant did not testify as to his version of events. The adjudicator, therefore,dismissed the grievance. [3] Before us, the Applicant renewed his attack on the complainant’s credibility.

Counsel for the Applicant conceded that theadjudicator was free to believe the complainant with respect to some aspects of her evidence and to disbelieve her with respect to otheraspects. He also conceded, following the teachings of the Supreme Court of Canada in R. v. Ewanchuk (SCC), [1999] 1S.C.R. 330 as re-affirmed in R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440, at paragraph 34, that consent means consent to the sexual actsin question at the time they occurred.

However, counsel for the Applicant also relies on paragraph 30 of the Ewanchuk decision in whichthe Supreme Court of Canada held that: The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including anyambiguous conduct.

The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct isconsistent with her claim of non-consent. [4] Counsel’s submissions were essentially that when all of the evidence is considered, including the instances where theadjudicator found that the complainant was not credible with respect to specific items, the adjudicator could not reasonably conclude thatthe complainant’s evidence that she did not consent to having sexual relations with the Applicant was credible. [5] The standard of review of the decision of an arbitrator is reasonableness with respect to questions of fact.

The question as towhether the complainant consented to have sexual relations with the complainant at the time those relations occurred is a pure questionof fact. As a result, the Applicant must show, as he attempted to do, that the adjudicator’s decision was unreasonable. [6] The adjudicator began his analysis by recognizing that in civil matters, there is only one standard of proof and that is proofon a balance of probabilities. He then quoted extensively from the Ewanchuk and J.A cases on the issue of consent.

The adjudicator thenreviewed the evidence, acknowledging the inconsistencies in the complainant’s evidence to which counsel for the Applicant drew hisattention. He drew conclusions as to which parts of the complainant’s evidence he believed and which he did not. On the crucial issue ofconsent, the adjudicator found that the complainant’s evidence was “clear that she was not consenting to any sexual activity”: see theDecision at paragraph 166.

After considering the Applicant’s argument as to the improbability of certain evidence, which the Employerrelied upon to establish the timeline of events, the adjudicator concluded: After considering all the evidence, I accept as credible that the complainant’s evidence shows on the balance of probabilities, she wassexually assaulted by the grievor. See the Decision at paragraph 170 [7] After having come to this conclusion, the adjudicator then addressed the issue of adverse inference. He noted that there is nopresumption of innocence in civil cases.

He then stated that the Applicant’s failure to testify should result in an adverse inference that hisevidence with respect to sexual assault would not be helpful to his case: see the Decision at paragraphs 173-175. [8] Only two people were present when the sexual assault is alleged to have occurred. Only one of them gave evidence. If thecomplainant is not believed, there is no other evidence in relation to her consent. The adjudicator clearly understood this: The complainant’s evidence is uncontradicted as only she and the grievor were in the truck and he did not testify.

It follows that the onlyway [the Employer] could not have met its onus to establish that the sexual assault took place was if the evidence disclosed that thecomplainant lacked credibility. Even though a complainant’s testimony may lack credibility on some issues, her testimony on thesubstance of the allegations may pass scrutiny. She can be believed on some matters and not believed on others while still warranting afinding that she was assaulted.

See the Decision at paragraph 160 (emphasis added) [9] Counsel for the Applicant relied on the proposition that the Employer could not succeed if the complainant lackedcredibility. As noted, he conceded that the critical issue was whether the complainant was to be believed when she said she did notconsent to the sexual relations but argued that in light of the omissions, inconsistencies, and improbabilities to which he pointed, thecomplainant should be found to lack credibility and, therefore, it was unreasonable for the adjudicator to find her credible on the issue ofconsent.

It seems to me that this amounts to arguing that a tribunal should assess a complainant’s credibility globally and then eitherbelieve all or none of the complainant’s evidence. This is the opposite of what is taught in Ewanchuk. [10] In support of this line of argument, he painstakingly took us through the evidence and invited us to draw inferences adverse tothe complainant. It hardly needs to be said that this is not our role. The adjudicator heard all of the evidence, saw all of the witnesses and,to quote from R. D.

Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13 Advocates' Q. 445, at p. 446, quoted with approval in Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paragraph 14: The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that ofthe Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders orrulings being challenged. [11] In these circumstances, the adjudicator is the trial judge.

He lived with this case over several months and was intimatelyfamiliar with all of the evidence. While I have considered the portions of the evidence to which counsel drew our attention, that evidencemust be assessed in the light of the whole of the evidence. The adjudicator was in a position to do this. We are not. I was not persuadedthat the adjudicator’s assessment of the evidence was such that it led him to a conclusion that was outside the range of possibleacceptable outcomes. I would not interfere with the adjudicator’s conclusion that the complainant should be believed when she says that

she did not consent to sexual relations with the Applicant and that, as a result, she was sexually assaulted. [ 12 ] As to the issue of drawing an adverse inference, the Decision makes it clear that the adjudicator decided the issue of the complainant’s credibility before he considered the effect of the Applicant’s failure to testify. As I read the Decision, the adjudicator treated the adverse inference as simply tending to confirm the conclusion to which he had come after a review of all the evidence.

Since this issue is not determinative of the result, it is not necessary to say any more about it. [ 13 ] The Applicant also raised the issue of the Employer’s bad faith and lack of procedural fairness. While the Employer’s initial disclosure of its investigation report was clearly unsatisfactory in its liberal use of redactions, the adjudicator ordered full disclosure, which remedied any potential breach of procedural fairness.

The Employer’s possible bias does not affect the fairness of the proceedings before the adjudicator. [ 14 ] As a result, I would dismiss the application for judicial review with costs. “J.D. Denis Pelletier” J.A. “I agree. Wyman W. Webb J.A.” “I agree. Yves de Montigny J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-282-15 STYLE OF CAUSE: DONALD JAMES SATHER v. DEPUTY HEAD (CORRECTIONAL SERVICE OF CANADA) PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: May 11, 2016 REASONS FOR JUDGMENT BY: Pelletier J.A. CONCURRED IN BY: WEBB J.A. DE MONTIGNY J.A.

DATED: May 12, 2016 APPEARANCES : Michael Prokosh For The Applicant Barry Benkendorf For The Respondent SOLICITORS OF RECORD : McGrady & Company Barristers and Solicitors Vancouver, British Columbia For The Applicant William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Responden