MURLIDHAR GUPTA Appellant v. ATTORNEY GENERAL OF CANADA, 2021 FCA 202

Date: 20211015 Docket: A-272-20 Citation: 2021 FCA 202 CORAM: WEBB J.A. GLEASON J.A. MONAGHAN J.A. BETWEEN: MURLIDHAR GUPTA Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard by online video conference hosted by the registry on October 12, 2021. Judgment delivered at Ottawa, Ontario, on October 15, 2021. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. Date: 20211015 Docket: A-272-20 Citation: 2021 FCA 202 CORAM: WEBB J.A. GLEASON J.A. MONAGHAN J.A.

BETWEEN: MURLIDHAR GUPTA Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT GLEASON J.A. [ 1 ] The appellant appeals from the judgment of the Federal Court in Gupta v. Canada (Attorney General) , 2020 FC 952 in which the Federal Court dismissed the appellant’s application for judicial review of the employer’s decision to adopt an administrative investigation report, with the result that his request for a retroactive promotion was denied.

The Federal Court premised its decision on the fact that the appellant had not exhausted the alternate remedies available to him, principally, the grievance procedure under s. 208 of the Federal Public Sector Labour Relations Act , S.C. 2003, c. 22, s. 2 (the FPSLRA ). [ 2 ] It was and is common ground between the parties that the appellant could have filed a grievance under s. 208 of the FPSLRA , contesting the employer’s decision. The appellant did not do so prior to filing his application for judicial review. The parties also agree

that such grievance, had it been filed, could not have been referred to adjudication under s. 209 of the FPSLRA. [3] The Federal Court’s decision is a discretionary one. Accordingly, this Court may interfere with its decision only if the Federal Courterred in law or made a palpable and overriding error in its consideration of the factors relevant to the exercise of its discretion: Canada v.Greenwood, 2021 FCA 186, at paras. 119-120; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215,[2017] 1 F.C.R. 331, at paras. 28 and 71-72; Imperial Manufacturing Group Inc. v.

Decor Grates Incorporated, 2015 FCA 100, [2016] 1F.C.R. 246, at paras. 18-19. [4] The parties concur that the Federal Court did not err in law and thus the sole issue for determination is whether that Court made apalpable and overriding error in its consideration of the factors relevant to the exercise of its discretion. [5] The appellant submits that the Federal Court so erred as it failed to consider the inadequacy of the grievance procedure in light of theparticular circumstances of the instant case.

The appellant more specifically says that the Federal Court was required to consider whetherthe grievance procedure provided him a suitable and appropriate remedy in accordance with the principles set out in paragraphs 43-45 ofStrickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 [Strickland]. He asserts that the grievance procedure couldnot do so in light of the lengthy dispute over his entitlement to a promotion and what he characterizes as the employer’s intransigence onthe issue, both of which he says establish that the employer was predisposed to decide against him.

In his written materials before thisCourt and his arguments before the Federal Court, the appellant also submitted that the violation of his procedural fairness rights by theinvestigator could not be remedied through the grievance procedure, providing an additional reason why such procedure was inadequate. [6] In support of the final point, the appellant relies on the decision of the Federal Court in Chickoski v.

Canada (Attorney General),2016 FC 1043, 2016 CarswellNat 10936 [Chickoski], which he submits stands for the principle that the grievance procedure is incapableof remedying procedural fairness violations where a grievance is not adjudicable under s. 209 of the FPSLRA.

With respect, I disagree.Chickoski stands for no such thing but instead confirms that the Federal Court has jurisdiction to hear a judicial review application from afinal level decision in the grievance procedure where the grievance is not referable to adjudication under s. 209 of the FPSLRA and anapplicant alleges that his procedural fairness rights have been violated in the grievance procedure.

Chickoski has no application to thecase at bar as the appellant filed no grievance. [7] Rather, the principles governing whether the Federal Court ought to have deferred to the grievance procedure are set out in Canada(Border Services Agency) v. C.B. Powell Ltd, 2010 FCA 61, [2010] F.C.J. No. 274 [C.B. Powell]. It holds that a party may not commencean application for judicial review prior to exhausting alternate administrative remedies – like the grievance procedure – unlessexceptional circumstances exist. In addition, as noted by this Court in paragraph 33 of C.B.

Powell, the threshold for exceptionality ishigh and typically does not include denials of procedural fairness committed prior to the final administrative decision. (See also, tosimilar effect, Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, (1979), 96 D.L.R. (3d) 14, at pp. 584-585,and Nosistel v.

Canada (Attorney General), 2018 FC 618, 2018 CarswellNat 10225 [Nosistel], at para. 41, upon which the Federal Courtrelied in the instant case). [8] These principles apply where a breach of procedural fairness is alleged to have occurred in an investigation that leads to a managerialdecision that may be grieved (see, for example, Nosistel at paras. 41-44 and McCarthy v. Canada (Attorney General), 2020 FC 930 atpara. 35). [9] Contrary to what the appellant asserts, the Federal Court faithfully applied these principles in its Reasons and cited at length fromC.B. Powell.

The Federal Court’s review of the facts demonstrates that it was aware of the relevant factual backdrop, including the periodin respect of which a remedy was sought and the positions taken by the employer. While the Federal Court did not comment on eitherpoint in the reasoning

section of its Reasons, it appears from the Federal Court’s Reasons that the focus of the appellant’s argumentsbefore that Court was the incorrect assertion premised on Chickoski, discussed above. [10] I do not believe that its choice to decline to more fully discuss delay or the alleged employer intransigence requires intervention bythis Court as the Federal Court did not commit a palpable and overriding error in determining that the circumstances were not sufficientlyexceptional to warrant its intervention.

As noted by the majority at paragraph 39 in Strickland, it is not the role of an appellate court,sitting in appeal from a discretionary decision like this one, to substitute its views for those of the Court below. [11] As concerns delay, it was open to the Federal Court to have declined to hear the case despite the passage of time. In addition, thecases the appellant relied on in his oral submissions before this Court involved lengthier delays than in this case: over ten years in Almreiv. Canada (Citizenship and Immigration), 2014 FC 1002, 466 F.T.R. 159 and over five years in Boogaard v.

Canada (Attorney General),2014 FC 1113, [2014] F.C.J. No. 1162 , (reversed on appeal on other grounds, Canada (Attorney General) v. Boogaard, 2015 FCA 150,474 N.R. 121 ,87 Admin L.R. (5th) 175, leave ref’d (S.C.C.)).

Here, by virtue of the settlement agreement, therelevant period ran between the date of that agreement and the date of the employer’s decision – a period of approximately two years –which is not inordinately long in light of the need for an investigation and detailed nature of the appellant’s submissions to theinvestigator. [12] I also note parenthetically that the passage of time has now become even less relevant because the appellant has recently beenawarded the promotion he sought (although the issue of back pay remains outstanding). [13] As concerns the alleged intransigence of the employer, the same may be said of virtually any situation where an employer makes adecision that an employee disagrees with.

An employer’s unwillingness to concede to an employee’s claim is not a sufficient basis for theFederal Court to circumvent the grievance procedure and discard the principles set out by the Supreme Court of Canada in Vaughan v.Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 regarding the exclusivity of the grievance process under s. 208 of the FPSLRA.

Thepresence of the privative clause in s. 214 of the FPSLRA indicates that it is Parliament’s intent that workplace disputes, like those of theappellant, be decided through the grievance procedure and that decisions made in that procedure be afforded deference by the FederalCourt. [14] There was accordingly ample basis for the Federal Court to have concluded that the circumstances of the case at bar were not soexceptional as to justify its intervention.

[ 15 ] There is one additional point I wish to make. Because it appeared from some of the discussion during the hearing that the appellant may have filed or might file a grievance to obtain the back pay he alleges he is owed, I underscore that nothing in the present decision should be understood as in any way impacting his ability to pursue such a grievance. [ 16 ] For the foregoing reasons, I would dismiss this appeal, with costs. "Mary J.L. Gleason" J.A. “I agree. Wyman W. Webb J.A.” “I agree. K.A.

Siobhan Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-272-20 STYLE OF CAUSE: MURLIDHAR GUPTA v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: BY ONLINE VIDEO CONFERENCE DATE OF HEARING: October 12, 2021 REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. DATED: OCTOBER 15, 2021 APPEARANCES : Paul Champ Bijon Roy For The Appellant Joel Stelpstra For The Respondent SOLICITORS OF RECORD : Champ & Associates Ottawa, ON For The Appellant A. François Daigle Deputy Attorney General of Canada For The Respondent