MacKinnon v. Nova Scotia (Justice), 2012 NSSC 302

SUPREME COURT OF NOVA SCOTIA Citation: MacKinnon v. Nova Scotia (Justice), 2012 NSSC 302 Date: 20120816 Docket: Hfx No. 355681 Registry: Halifax Between: Rebecca MacKinnon Applicant v. Nova Scotia Department of Justice (Marian Tyson, Deputy Minister), Kelliann Dean, Peter Underwood and Kevin Malloy (Disciplinary Appeal Panel) Respondents LIBRARY HEADING Judge : The Honourable Justice Michael J. Wood Heard: March 19 and 20, 2012 in Halifax, Nova Scotia Final Written Submissions: July 5, 2012

Written Decision: August 16, 2012 Subject: Judicial Review - Decision of Appeal Panel Employment - Termination of Probationary Employment

Summary: Applicant ’ s probationary employment was terminated due to unsuitability. She appealed deputy minister ’ s decision to an appeal panel under the Civil Service Act which upheld the termination. On judicial review, it was alleged that the panel ’ s decision was unreasonable. Issue: Was the applicant properly assessed as a probationary employee and given appropriate feedback on her performance? Did the panel properly consider the grounds for termination? Was proper notice of termination given and, if not, what is the effect of that failure?

Result: The decision of the appeal panel was reviewed on a standard of reasonableness. The Court concluded that the decision with respect to the assessment of the reasons for termination was reasonable as was the panel ’ s analysis of the employer ’ s performance evaluation. The panel ’ s conclusion that failure to follow the legislated notice process was irrelevant was set aside as being unreasonable. That issue was remitted to the panel for reconsideration. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: MacKinnon v. Nova Scotia (Justice), 2012 NSSC 302 Date: 20120816 Docket: Hfx No. 355681 Registry: Halifax

Between: Rebecca MacKinnon Applicant - and - Nova Scotia Department of Justice (Marian Tyson, Deputy Minister), Kelliann Dean, Peter Underwood and Kevin Malloy (Disciplinary Appeal Panel) Respondents Judge: The Honourable Justice Michael J.

Wood Heard: March 19 and 20, 2012, in Halifax, Nova Scotia Final Written Submissions: July 5, 2012 Written Decision: August 16, 2012 Counsel: Eric Durnford, Q.C. and Hanna Al Sharief, for the Applicant Edward Gores, Q.C., for the Respondent, Nova Scotia Department of Justice By the Court : [ 1 ] In the spring of 2009, the Public Service Commission held a competition to fill the position of Captain at the Central Nova Scotia Correctional Facility in Burnside ( “ CNSCF ” ). Rebecca MacKinnon was the successful applicant and was appointed to this position in July of 2009.

The initial probationary period for her employment was twelve months. [ 2 ] For some time prior to Ms. MacKinnon ’ s hiring, the Department of Justice had been attempting to improve the management culture at CNSCF. One aspect of this was a desire to ensure that all staff observed and followed administrative policies and procedures. In the view of some in management, there was a malaise with respect to the importance of ensuring compliance with good administrative practices. It was felt that this could negatively affect safety and security at the institution. As a captain, Ms. MacKinnon was to be an

important player in the process under way to improve this culture. [ 3 ] During the first few months of her employment, a number of issues were raised with respect to Ms. MacKinnon ’ s performance. These concerns were documented and she received guidance with respect to improvements that would be required. [ 4 ] In April, 2010, an incident occurred at CNSCF which resulted in two investigations being undertaken. Ms. MacKinnon was working as Captain and also Officer in Charge of CNSCF at the time of the incident.

In light of information obtained during the investigations, disciplinary actions were undertaken against a number of employees, including Ms. MacKinnon. Her probationary employment was terminated by a letter dated June 22, 2010. [ 5 ] Ms. MacKinnon appealed the termination of her employment in accordance with the procedure established under the Civil Service Act , R.S.N.S. 1989, c. 70. The Disciplinary Appeal Panel ( “ the Panel ” ) heard evidence from seven witnesses over ten days and issued a written decision on August 23, 2011 confirming the decision to terminate Ms. MacKinnon ’ s employment. [ 6 ] Ms.

MacKinnon initiated this proceeding in September, 2011, seeking judicial review and an order that the termination of her employment was void ab initio . [ 7 ] As with any judicial review, the first step is to determine the applicable standard of review. It is then necessary to examine the Panel ’ s decision in accordance with that standard and, if it falls short in any respect, determine what remedy ought to be granted. STANDARD OF REVIEW [ 8 ] The assessment of the standard of review is a determination of the degree of deference to be given to the decision maker.

Different aspects of the decision may be given different degrees of deference. There are currently two possible standards of review, and these are reasonableness and correctness. Reasonableness is the more deferential of the two. [ 9 ] Both parties agree that the starting point for the analysis is the Supreme Court of Canada decision in Dunsmuir v. New Brunswick , 2008 SCC 9 . In this decision, the Supreme Court attempted to simplify the approach used in determining the standard to be applied for review of administrative decisions.

The Court did not set out a rigid formula, but rather provided a non-exhaustive list of relevant factors to be considered. [ 10 ] The initial inquiry is to determine whether there has already been a judicial determination of the standard of review for the tribunal in question. In this case, there are no prior decisions on this issue and so a more detailed analysis must be undertaken. This process is outlined in the following passage from the Dunsmuir decision: 64 The analysis must be contextual.

As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [ 11 ] Section 156(4) of the General Civil Service Regulations ( “ the Regulations ” ) made pursuant to the Civil Service Act contains a privative clause as follows: Disciplinary appeal panel decisions

. . . . 156(4) A decision of a disciplinary appeal panel is final and binding. [ 12 ] The effect of such a provision is discussed by the Court in Dunsmuir at para. 52 : 52 The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized.

This does not mean, however, that the presence of a privative clause is determinative. The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies. This power is constitutionally protected.

Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction. [ 13 ] An assessment of the purpose of the tribunal and its expertise requires a review of the Civil Service Act and the Regulations. This review discloses the following: (i)The appeal procedure is only available to non-unionized employees whose employment is suspended or terminated for cause (s. 45(1) (

r) of the Act ). (ii)The deputy head of a department is responsible for oversight and direction with respect to the attendance, conduct and work performance of all employees in the department (s. 10(2)(

a) of the Act ). (iii)The deputy head of a department has authority to dismiss employees for cause and is not permitted to delegate this power (s. 11(2) and s. 27 of the Act ). (iv)Where an employee appeals the termination of their employment, the panel established to hear the appeal will consist of the Commissioner appointed under the Act and two deputy heads other than the one who made the decision under appeal (s.154(2) of the Regulations). (v)After hearing the appeal, the panel may confirm, reverse or vary the decision or refer the matter back, with recommendations for further consideration (s.156(1) of the Regulations). [ 14 ] It is clear from the legislation that the appeal to the Panel is only available to employees who have been subjected to the most serious disciplinary sanctions - suspension or dismissal for cause.

The Panel is established on an ad hoc basis and is composed of the Commissioner of the Civil Service and two deputy heads. It is important to recognize that deputy heads are responsible for oversight of all workplace performance and conduct in their department. In addition, they have exclusive authority to dismiss employees for cause. [ 15 ] In some respects, the appeal available for non-unionized employees in the Civil Service is similar to a grievance process, with the Panel acting as the adjudication board.

The Panel has wide authority to substitute its own decision for that of the deputy head or to refer the matter back for a reconsideration with recommendations. The majority of the Panel are deputy heads who have significant responsibility for a wide range of employment issues, including discipline, in their departments. [ 16 ] The nature of the tribunal and the expertise of its members, combined with the existence of a privative clause, are strong indications that the decisions of the Panel ought to be given deference and reviewed on a reasonableness basis.

[ 17 ] Before concluding the standard of review analysis, it is necessary to consider the nature of the particular questions in issue. Although the notice of judicial review set out eleven grounds, the written submissions filed by counsel for Ms.

MacKinnon reduce the alleged reviewable errors to the following: (i)the Panel was unreasonable by making a reviewable error of fact by concluding that there was an adequate assessment of Captain MacKinnon as a probationary employee when the evidence of the Employer at the disciplinary hearing was clearly and unmistakably to the contrary; (ii)the Panel was incorrect, or unreasonable, in concluding that Captain MacKinnon was dismissed for unsuitability as a probationary employee rather than for cause and, in particular, failed to properly determine the fundamental issue of the true reason for her termination; (iii)the Panel was incorrect and made an error of law in concluding that Captain MacKinnon’s failure to document staff activity was a proper element of her termination despite concluding that there was systematic non-compliance with the alleged breached policy; (iv)the Panel was incorrect and made an error of law and a reviewable error by concluding that Captain MacKinnon allowed staff to sign the round logs with “staff” as opposed to signing their name or initialling in light of the clear and unmistakably evidence adduced at the hearing to the contrary, and in concluding that “...Ms.

MacKinnon’s conduct and behaviour was inconsistent with the Employer’s expectation that an employee in a management position be truthful and accept responsibility for his/her actions” when this issue was not part of the reasons for her termination. The panel effectively amended the termination letter in reaching this conclusion thereby exceeding its jurisdiction which was to consider the grounds of termination as specified in Captain MacKinnon’s termination letter; and (v)the panel was incorrect and made an error of law in not applying

Section 27 of the Act and sections 140(2) and 141(3) of the Regulations. [ 18 ] It is possible that different issues will be subject to different standards of review. In this case, the applicant argues that factual determinations are to be reviewed on a standard of reasonableness and all legal issues on the standard of correctness. In my view, such a distinction is not warranted. [ 19 ] The recent Supreme Court of Canada decision in Nor-Man Regional Health Authority Inc. v.

Manitoba Association of Health Care Professionals , 2011 SCC 59 considered a judicial review from an arbitration decision which applied the doctrine of estoppel. The issue was whether an arbitral award applying common law or equitable remedies is reviewable on the standard of reasonableness or correctness.

The Court outlined the general principles at paras. 35 and 36: 35 An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “true question of jurisdiction or vires ”. It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunals ( Dunsmuir , at paras. 58-61 ; Smith , at para. 26; Toronto (City) v.

C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 , per LeBel J.). 36 The standard of reasonableness, on the other hand, normally prevails where the tribunal’s decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statues closely connected to its function, with which it will have particular familiarity” ( Dunsmuir , at paras. 51 and 53-54 ; Smith , at para. 26). [ 20 ] The Court went on to conclude that the application of legal principles by arbitrators does not have to be correct, provided that the principle is not of central importance to the legal system as a whole and also outside the adjudicator ’ s area of expertise. The Court ’ s rationale is discussed in the following passage:

44 Common law and equitable doctrines emanate from the courts. But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context. 45 On the contrary, labour arbitrators are authorized by their broad statutory and contractual mandates -- and well equipped by their expertise -- to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity.

To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized. [ 21 ] Although these comments were made in the context of a labour arbitration, I believe that they are equally applicable to the Panel here when it applies common law employment principles.

This Panel ’ s jurisdiction is limited to serious discipline cases and its members are people responsible for administration of employment practices in the public sector of the Province. To the extent that they considered questions of law, these were ones which fell within the ambit of their experience as deputy heads. As a result, I conclude that the standard of review applicable to the first four grounds alleged by the applicant is reasonableness. [ 22 ] The fifth ground of review is whether the failure to comply with the statutory process for a termination results in the decision being void ab initio .

In my view, this is a question of law but not one which is of “ central importance to the legal system as a whole and outside the adjudicator ’ s specialized area of expertise ” as described in the Nor-Man Regional Health Authority decision. As a result, I conclude that the standard of review on this issue should also be reasonableness. ISSUES [ 23 ] The notice of judicial review set out eleven grounds; however, in her written submissions, Ms. MacKinnon has limited her challenge to the five points previously mentioned.

I would categorize the issues arising out of these grounds as follows: (1)Did the employer carry out an adequate assessment of Ms. MacKinnon as a probationary employee? (2)What was the true reason for the termination of Ms. MacKinnon ’ s employment? (3)Was failure to document staff activity a proper element in the termination in light of the non-compliance by other employees? (4)Did Ms.

MacKinnon allow staff to sign the round logs with “ staff ” ? (5)Was the Panel entitled to consider matters outside of the complaints set out in the termination letter? (6)What is the effect of failure to comply with the notice provisions in the Regulations? ANALYSIS [ 24 ] Prior to considering the specific grounds of review, I will discuss three issues which have general application to this proceeding. These are the terms of probationary employment in the public sector in Nova Scotia, the application of the reasonableness standard and the nature of the Panel ’ s hearing.

Probationary Employment in the Public Sector [ 25 ] When an employee is hired on a probationary basis, the purpose of the probationary period is to allow the employer an opportunity to assess their suitability for long term employment. Absent specific contractual terms, the probationary employee is entitled to many of the rights and benefits accorded to regular employees. This includes an obligation on an employer not to terminate their employment without notice, in the absence of just cause.

The era when an employer could arbitrarily terminate a probationary employee without obligation or explanation is past. [ 26 ] The governing principles for the termination of probationary employment were discussed by Hood, J. of this Court in Survival Systems v. Johnston , [1997] N.S.J. No. 406 .

These principles were adopted with approval from a prior Manitoba decision and are found at para. 23: 1.The onus is upon an employer to show that it has just cause to discharge even a probationary employee. 2.Just cause may be that the employee is, in the opinion of the employer, unsuitable for a job. 3.The unsuitability which would justify the termination of a probationary employee may go beyond those grounds which might support the discharge of a regular employee and may include such considerations as character, compatibility, as well as ability to meet the present and future production standards expected by the employer. 4.Where a probationer has been terminated for unsuitability, the employer’s judgement and discretion in the matter cannot be questioned. 5.All of the foregoing is subject to the requirement of the employer showing that the discharge was in the bona fide exercise of the employer’s discretion and judgement that the employee was not suitable and not for some other reason or improper motive which would not justify a dismissal. [ 27 ] As this indicates, the question of an employee ’ s suitability is part of the analysis as to whether an employer has cause for termination.

There is no right on the part of an employer to dismiss a probationary employee for unsuitability unless it can meet the test for just cause as outlined in the Survival Systems decision. This applies to employees in the public service in Nova Scotia and, in particular, Ms. MacKinnon. Application of the Reasonableness Standard [ 28 ] Since all of the issues on this review will be assessed on the basis of reasonableness, it is important to understand what that analysis will involve.

The Supreme Court of Canada in Dunsmuir described it as follows: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 29 ] As this passage indicates, there are two distinct components to be considered in the reasonableness assessment. These are the analytic process followed by the tribunal and the substance of decision itself.

This was acknowledged by the Nova Scotia Court of Appeal in Canadian Union of Public Employees, Local 108 v. Halifax (Regional Municipality) , 2011 NSCA 41 at para. 26 :

[26]Reasonableness requires the reviewing court to determine whether (1) the tribunal expressed a sufficiently understandable or transparent reasoning path so the reviewing court can assess the conclusion’s reasonableness, and (2) the tribunal’s conclusion occupies the set of reasonable outcomes; [authorities cited] ... [ 30 ] The Supreme Court of Canada described the application of the reasonableness standard to the decision under review in Nor- Man Regional Health Authority as follows: 58 In my view, the labour arbitrator’s reasons are not just transparent and intelligible, but coherent as well.

They set out in detail the evidence, the submissions of the parties, and the arbitrator’s own analysis. The arbitrator reviewed the decisions relied on by the parties, and he identified and applied the precedents he found relevant and persuasive. They are consistent with his decision, and his reasons are amply sufficient to explain why he imposed the remedy of estoppel in this case. [ 31 ] When assessing the Panel ’ s decision, it will be important to consider whether it adequately describes the reasoning process which led to the conclusions in issue.

It will also be necessary to assess whether those conclusions fall within the range of potential reasonable outcomes. Nature of the Appeal Panel Hearing [ 32 ] The hearing before the Panel is described in the Regulations as an appeal; however, it also involves calling of witnesses, cross- examination, evidentiary determinations, rebuttal evidence and participation by legal counsel (see s.155 of the Regulations). [ 33 ] Although some aspects of the process resemble a hearing de novo , I am satisfied that the Panel ’ s function is to consider an appeal from the deputy head ’ s decision to terminate Ms.

MacKinnon, rather than engage in a fresh consideration of whether her employment ought to be terminated. After considering the evidence and arguments the Panel may confirm, reverse or vary the deputy head ’ s decision or refer the matter back for reconsideration with recommendations. (1)Did the employer carry out an adequate assessment of Ms. MacKinnon as a probationary employee? [ 34 ] Both before the Panel and this Court on review, Ms. MacKinnon argued that her employer did not meet its obligations to review her performance as a probationary employee and provide appropriate feedback.

This was based primarily on the alleged failure to follow certain policies and procedures applicable to management employees in the public sector. [ 35 ] The employer acknowledges that the formal procedures set out in the policies were not followed but claims that there was sufficient assessment and feedback provided. [ 36 ] In Alexander v. Padinox Inc. , [1999] P.E.I.J. No. 88 , the Prince Edward Island Supreme Court - Appeal division considered a claim for wrongful dismissal by a probationary employee.

After reviewing decisions from Saskatchewan and Prince Edward Island, the Court described the onus on an employer to justify dismissal of a probationary employee as follows: 19 In accordance with the test set forth by Noble, J., the employer has the onus of establishing that in dismissing a probationary employee it acted fairly and with reasonable diligence in determining the suitability of the person for a permanent position.

The employer may establish it acted in this manner by allowing the employee a reasonable opportunity to meet the standards for performance in the position which were made known at the time he was hired. This will include, not only the employee’s ability to do the work but will also include his or ability to work in harmony with others in the workplace. The employer may set other criteria as it deems necessary, and the employer cannot be held liable for the dismissal of a probationary employee if these criteria are applied.

Both Noble J. and MacDonald J. were of the view that the decision should be reasonable and the assessment of suitability should be made in a manner which is not arbitrary, discriminatory or in bad faith.

[ 37 ] The requirement to provide a reasonable opportunity for a probationary employee to demonstrate their suitability was further discussed by the Court as follows: 24 A person who ceases the search for work to accept a job on a probationary basis and whose opportunity for permanent employment after the probationary period rests solely in the discretion of the employer, may be even more vulnerable unless there are some objective standards placed on the employer in assessing the suitability of the employee for permanent employment.

While an employee in accepting employment with a probationary period attached, agrees to a less secure tenure of employment than an employee hired permanently, both parties enter into an employment contract with a spirit of reciprocity which would indicate the employee expects a reasonable and objective assessment of his performance and suitability for the position permanently. The employee expects the relevant aspects of his employment to be evaluated regularly by the employer and discussed with the employee so as to give the employee an opportunity to correct any defective action.

The scope of the evaluations and assessments, as well as the number of opportunities a probationary employee would have to alter his or her performance, will, naturally, depend on the length of the probationary period. However, in this case where the probationary period is up to one year, there was adequate time for a process of extensive evaluation and assessment as to the employee’s suitability for permanent employment.

Furthermore, there was adequate time for discussion between the employer and the employee as to the suitability and performance of the employee. 25 Characteristics such as attitude, competence, conduct and compatibility with others in the workplace are all measurable by an objective standard.

A reasonable opportunity fo an employee to demonstrate he or she is suitable is measurable on an objective standard in that it should be the subject of periodic evaluations or assessments by the employer which are discussed with the probationary employee. [ 38 ] In Alexander , there was very limited evaluation of the plaintiff ’ s suitability. The Court described the limited evidence on this issue as follows: 32 Mr.

Alexander did not receive any formal evaluation of his suitabilit6y, and any informal evaluation, whether by the operations manager or the vice-president of finance, was positive, or at the very least there was never any negative assessment of his suitability. Two weeks before Mr. Alexander was terminated, he inquired of the vice-president of finance as to how he was doing in his job and the only advice he received was to read his job description. Although it undertook to hire Mr.

Alexander in a very senior position for a probationary term of up to one year, the company did not have a procedure for evaluating a probationary employee. [ 39 ] The Court concluded that, based on this evidence, there was no reasonable opportunity given to Mr. Alexander to prove his suitability for a permanent position. [ 40 ] In Ivens v. Automodular Assemblies Inc. , [2000] O.J. No. 2579 , the Ontario Superior Court of Justice allowed an employee ’ s claim for wrongful dismissal.

In that case, the plaintiff was a probationary employee and the grounds for termination were absenteeism, failure to meet required work standards and the inability to get along with co-workers. At trial, the employer did not call evidence with respect to any of the alleged shortcomings, other than absenteeism.

The evidence also indicated that the plaintiff was never advised that her employment was in jeopardy and, to the contrary, she was told that her absenteeism was not a problem. [ 41 ] The Court concluded that the terms of employment incorporated the discipline procedure found in the Employee Handbook, which required a four step process consisting of verbal warning, a written warning, time off without pay and termination. The Court held that failure to follow the agreed disciplinary procedure rendered the dismissal unlawful. [ 42 ] Ms.

MacKinnon argues that the Alexander and Ivens cases establish that failure to follow the Province ’ s Performance Management Policy renders the termination of her employment unlawful. This policy requires that probationary employees have interim performance reviews conducted and, if there is unsatisfactory performance, they must be given a reasonable opportunity to make the required improvements.

There is also a policy requiring a formal performance plan for all employees, which is to be used in reviewing their performance. [ 43 ] The decisions in Alexander and Ivens illustrate the proposition that probationary employees should be given a reasonable

opportunity to prove their suitability for employment. If their performance is inadequate, they should be advised of this and given an opportunity to improve. There is no principle indicating that only a formal evaluation process will suffice. In both of these decisions, the Court concluded, on the evidence, that the employee had not been given an adequate opportunity to demonstrate their suitability. [ 44 ] For this ground of appeal, the Panel had to consider the evidence and make a factual determination with respect to what evaluation of Ms. MacKinnon ’ s performance had taken place.

It was then required to take these facts and decide whether they demonstrated an adequate assessment within the above noted principles. I must analyze the Panel ’ s decision and see if it meets the required standard of reasonableness. [ 45 ] With respect to the process element of reasonableness, the Panel sets out clearly how it arrived at its conclusion. On each issue, it summarizes the positions of the parties and provides an explanation for its decision. It also summarizes the relevant evidence upon which it relies. [ 46 ] On the question of the adequacy of the assessment of Ms.

MacKinnon, the Panel summarizes the submissions of the parties at p. 6 of its decision: Appellant: MacKinnon submits that she was not processed as a probationary employee, that the Employer failed to follow its own probationary process as outlined in the “Performance Management Policy (9.1)” of the Government of Nova Scotia and that the Employer did not hold anyone accountable for failure to properly evaluate her.

The Appellant submits that the failure of the Employer to follow the procedure set out in its own policies for probationary employees makes any attempted dismissal on this basis arbitrary and discriminatory. Employer: The Employer asserts that it is not relevant that quarterly performance reviews were not conducted in respect of Ms. MacKinnon. The case law establishes that the employee be given adequate time to prove his or her suitability and there is no statutory requirement that performance reviews by conducted before a probationary employee can be terminated. The Employer submits that Ms.

MacKinnon was given almost a year to demonstrate that she had the capacity to perform the Captain’s role. [ 47 ] The Panel then refers to the requirement set out in Alexander v. Padinox Inc., supra, that an employee be given a reasonable opportunity to demonstrate their suitability. It also outlines the evidence which it considered significant: Evidence supports the efforts made to provide Ms. MacKinnon with periodic evaluations, assessments, feedback and clarification on performance expectations through a variety of means: •On November 2, 2009 Superintendent Partridge sent a letter (Exhibit P-13) to Ms.

McKinnon(sic) via registered mail. The letter outlines seven specific issues that were discussed with Ms. McKinnon (sic) during a meeting held October 21, 2009 (P-12) to provide performance feedback, indicating that another meeting would be held in two months’ time. Mr. Partridge testified that the (sic) thought Ms. MacKinnon had “gotten off on the wrong foot”. Mr.

Partridge was concerned and brought the following issues to her attention: 1.her use of inappropriate language; 2.inappropriate comments regarding senior managers and managers at the facility; 3)she was not following standard operating procedures and post orders; 4)she was not wearing the proper uniform; 5)she had placed an additional officer on North Unit, despite Ms. (sic) Partridge’s denial of her request to do so;

6)she did not know how to develop offender management plans; 7)one of her staff members brought out an offender who was under a management plan without restraints and the staff member did not have a radio. Mr. Partridge instructed her to review Standard Operating Procedures and to further reinforce proper procedures with her staff. He encouraged Ms. MacKinnon to rely on other Captains who had experience, and encouraged her not to afraid to say “you don’t know” as other managers would assist her. •Mr. Partridge met with Ms.

MacKinnon again in December and testified that he thought things were improving and thought she was doing better. He also testified that he didn’t say she was done her probation and that he didn’t recall saying she was on probation; he considered her to be on probation because it was automatic for new staff. He also stated that he had no further concerns - except for the events of April 17th or the death in custody. The panel accepts that there were concerns about Ms. MacKinnon’s performance, that Mr.

Partridge gave her the opportunity to correct them and that her performance may have improved after the issues were brought to her attention. The Panel also recognizes that the events of April 17th triggered further investigations which highlighted shortcomings related to Ms. MacKinnon’s performance of administrative procedures and provided a further opportunity to assess her suitability for the role of Captain and OIC.

The panel believes that for someone with her experience in corrections, and the fact that she had held OIC position’s (sic) prior to and on April 17th, in the facility, that she would have made greater effort to ensure she fully understood her responsibilities as a Captain and OIC captain as well as the relevant policies and procedures she was charged with overseeing and enforcing, particularly since this deficiency had been brought to her attention by Mr. Partridge.

The Panel believes this should have resulted in her behaving differently on April 17th with respect to documenting staff activity and providing oversight for the facility’s operations. •Ms. McKinley, Human Resources Consultant, testified that for probationary employees, the expectation is that managers should have informal “check-in” meetings throughout the year to see how they are doing - to ensure proper training, orientation, etc. and that the meetings don’t have to be scheduled and formal.

Therefore, the Panel fails to see how not adhering to specific templates affects a supervisor’s ability to provide feedback on performance or take corrective action when issues arise. Mr. Partridge demonstrated this by holding a meeting with Ms. MacKinnon and following up with a registered letter. •Mr. Kelly testified that he had spoken with Superintendent Partridge about Ms. MacKinnon’s performance. He also testified that he knew she was a probationary employee and that he had counselled Mr. Partridge in terms of what action he might want to consider with respect to her performance issues. •Ms.

MacKinnon was participating in training as a new employee. The Learnet transcript, (Exhibit P-10) outlines the list of courses Ms. McKinnon (sic) completed related to her supervisory function - all of which occurred between August 17, 2009 and February 02, 2010. The Employer was therefore, making an effort to ensure she received the training required to do her job. •Ms.

MacKinnon received a letter on May 11, 2010 (Exhibit P-22) from Senior Superintendent Partridge as a result of “recent and past events” occurring at the facility, reminding her of the importance of completing rounds properly, holding proper musters and keeping accurate records of staffing activity. The letter indicated that corrective action would be taken if captains did not follow the directives. While this was issued after the death in custody on April 17th, it indicates management’s desire to enforce compliance. Ms.

MacKinnon would have known that this was a serious issue and indicates her knowledge of the importance of doing rounds in her interview with Fred Cumby when she says: I’ve been in corrections 25 years, I know rounds have to be done in a unit...” •Mr. Kelly testified that he had spent time at the Burnside facility, doing rounds and talking to managers about the importance of the fundamentals and how they can have a dramatic impact on the safety of staff and inmates. He testified that he had spoken to Ms. MacKinnon about what his expectations were during rounds and about the importance of documenting them.

The panel acknowledges that Mr. Kelly had a responsibility to ensure that policies and procedures were being followed in the facility based on incidents that had happened in the past. We accept that management was making a concerted effort to reinforce the importance of adhering to policies with respect to the conduct and documentation of rounds and that wilful non-compliance was an issue. [ 48 ] The overall conclusion of the Panel is set out in the following passage from p. 6 of the decision: Panel: The Panel reviewed evidence related to Ms.

MacKinnon’s probationary status and finds that while specific performance

management templates may not have been completed according to the performance management policy for excluded employees, Ms. MacKinnon’s performance was being monitored by Mr. Partridge and Mr. Kelly; that he received reasonable, objective feedback on her performance from both Mr. Partridge and Mr. Kelly and that she was given a reasonable opportunity to demonstrate her suitability during the probationary period or to correct any defective action. [ 49 ] In my view, the decision making process used by the Panel is easily discernable.

It understood the submissions of both parties and carefully considered the evidence presented. It decided that even though the formal evaluation process was not followed, there was, in fact, a reasonable assessment of Ms. MacKinnon as a probationary employee. Having reviewed the evidentiary record and the decision, I am satisfied that the Panel ’ s conclusions on this issue fall within the range of reasonable alternatives available in the circumstances. (2)What was the true reason for the termination of Ms.

MacKinnon ’ s employment? [ 50 ] The arguments before the Panel and this Court were presented on the basis that there is a distinction between the termination of a probationary employee for unsuitability and termination for cause. For example, the Panel summarized the positions of the parties on this issue at p. 10: Employer: The Employer’s position is that Ms. MacKinnon was a probationary employee and although prepared to prove cause exists, decided to avail itself of its right under the legislation to discontinue the employment of Ms. MacKinnon on the basis of her demonstrated unsuitability.

The employer alleges that Ms. MacKinnon’s termination letter was written to show that the decision was based on facts that were related to her employment and that the decision was neither arbitrary, nor made in bad faith. Appellant: Ms. MacKinnon alleges that the employer’s decision to dismiss her was not made in good faith and she was dismissed for alleged disciplinary causes rather than probationary unsuitability.

She asserts that the allegations of misconduct relied upon by the Employer for the dismissal are not factually correct and even if they were (in part or in whole) should have resulted in discipline other than dismissal. She alleges that policies and procedures were not strictly enforced by management at the facility, thereby mitigating her alleged “non-compliance”.

Further, Captain MacKinnon asserts that the Employer led no evidence to prove that these policies and procedures were brought to the attention of Captain MacKinnon or that she was advised that breaching those policies would result in her dismissal from her employment. [ 51 ] As previously discussed, unsuitability is merely a subset of the larger category of cause for which the employment of a probationary employee may be terminated. The Panel referred to the decision of Justice Hood in Survival Systems v.

Johnston, supra and correctly noted that it stood for the proposition that just cause for termination of a probationary employee included unsuitability. [ 52 ] The Panel accepted the position of the employer that Ms. MacKinnon was terminated for unsuitability as a probationary employee, with the termination letter setting out examples of her lack of suitability for a leadership position.

The Panel then reviewed each of the points in this letter, considered the evidence presented to them and concluded that, in each case, the concerns with respect to suitability were justified. [ 53 ] The operative part of the letter terminating Ms. MacKinnon ’ s employment reads as follows: This is in reference to your probationary employment as a Captain at the Central Nova Scotia Correctional Facility. I am advised that in the course of an investigation into a death in custody which occurred on April 17, 2010, a number of issues with respect to your performance as a Captain were identified.

You admitted to removing food from the institutional kitchen on April 17, 2010, and participated in providing brunch for staff contrary to the Corrections Act . This is considered theft of institutional property. You also stated that you submitted meal tickets to compensate for the brunch. The meal tickets however were not provided until a week later and only after the matter was brought to your attention. In addition, on that same day you failed to complete late reports for three staff on your shift. You also failed to record that a staff

member left the institution for approximately one hour that day. Finally, you also allowed staff to sign the logs for rounds with “staff,” as opposed to signing their name or initialling, even though you admitted that this practice is unacceptable. These behaviours represent a serious and unacceptable threat to the safety and security of the institution. I am also advised that during the investigation regarding the above matters you were defensive and critical that matters such as removing food from the kitchen and not conducting rounds were being investigated. Your criticism of the investigation is unacceptable.

Your failure as a manager to recognize the significance of holding staff accountable for their attendance and record keeping is unacceptable for someone who possess a significant amount of management experience working in correctional institutions. Your removal of food from the kitchen without authorization as a member of the management staff sets a poor example and is a demonstration of poor judgement, for both kitchen and correctional staff. Prior to this incident, your use of inappropriate language and criticism of senior managers was brought to your attention by Mr.

Partridge in correspondence dated November 2, 2009. Your conduct and behaviour are inconsistent with the workplace culture we attempt to foster and encourage. Your behaviour in this regard is completely incompatible with the department’s policies and procedures and values. Due to the leadership role within the facility and the nature of your misconduct, the necessary trust needed to sustain a viable employment relationship has been irreparably breached.

After careful review, we have determined that your performance does not meet our requirements for a Captain and we have lost confidence in your ability to be successful. Therefore your probationary employment with the Department of Justice is terminated effective immediately. ... [ 54 ] It is clear that the concerns set out in this letter relate to Ms. MacKinnon ’ s ability to provide leadership and ensure adherence to administration practices and procedures.

The significance of these issues in the context of CNSCF was discussed by the Panel at p. 12 of its decision: The Panel agrees with the Province’s assertion that procedure and process are fundamentally important in the Central Nova Correctional Facility and employees who disregard them are a danger to the operation. This is further reinforced in the job description of a Captain which, under “impact of results” states: If errors of judgement are made by the Captain or subordinates, the results could include escapes, violence, serious injury and possible death to staff, other offenders or the public at large.

Strong and consistent leadership is required to maintain high levels of morale and safety as well as positive staff/offender relations. The Panel believes that when the behaviours identified in Mr. Partridge’s November 2 letter to Ms. MacKinnon are considered in light of the behaviours revealed through the investigations into the April 17th incident, that Ms. MacKinnon’s attitude and behaviour had not significantly changed. We agree with the statement in the Employer’s closing submission: “In cross-examination, counsel for the Appellant insisted that Mr. Partridge’s admission that Ms.

MacKinnon did not require another counselling meeting meant she had been “cured” of her defects. In fact the investigation into the events of April 17, 2010 revealed exactly more of the problematic behaviours identified in the October, 2010 meeting with Superintendent Partridge: behaviours that, in sum, indicated to the employer that Ms. MacKinnon was unsuitable for the role of Captain, and that she had not, in fact, truly accepted his counsel.” [ 55 ] The letter from Mr. Partridge dated November 2, 2009, which is referred to by the Panel and also referenced in the termination letter, stated as follows:

A meeting was held with you over some concerns on 21 October 2009. The following issues were discussed: It was my opinion that perhaps you got off on the wrong foot at CNSCF. Your response was that you did not feel you were given enough time to orientate yourself to a new system. I informed you that we should start with a clean slate. 1).Use of inappropriate language. You admitted to using inappropriate language and that you were a little ‘rough’ and that you came from a rough institution.

I informed that I expected managers to portray a professional image for both offenders and subordinate staff. 2).Inappropriate comments regarding senior managers and managers at the facility. You denied this and asked me for the source of my information. My response to you was that I received information from a number of sources. 3).The reading of Standard Operating Procedures and Post Orders and specifically for the adjudication of generated levels that offenders are placed on. There were no third officer signatures nor that of the offender.

I asked if you were including a third staff member and you responded that you had. I informed that I also wanted the officer to sign off on the level and also the offender. If the offender refuses to sign, then this is to be noted. 4).The issue of wearing the proper uniform issue was brought to your attention and I am glad to see that you are now wearing the proper uniform issue. 5).You had a short meeting with this writer at such time you requested that an additional officer be assigned to the North Unit because of the number of offenders that were on a rotational basis to the common area in the units.

I denied this request. Later on the same day, Director Sean Kelly visited the North Unit and noticed that seven (7) staff were congregated in the North Control. 6)This writer inquired into the experience you had in developing offender management plans. You informed that management plans were not developed in the jurisdiction you worked prior to coming to this system.

You were informed that you should be relying on the present captains who had experience and would assist you with this and other issues. 7).This writer brought to your attention that one of staff in the North Unit brought an offender out of the housing unit who was under a management plan with no restraints on the offender and the staff member without a radio. You were advised that there were a number of offenders housed at the facility that were behavioural problems for staff in the past. I again asked you to rely on the rest of the management team as most had at least twenty (20) experience in this system.

Do not be afraid to say you ‘don’t know’ as other managers would assist you. I closed the meeting by finding out from you if there was anything that we could provide to assist you in completing your responsibilities and your reply was ‘no’. This writer informed you that a meeting will be scheduled in two (2) months time to see how you were progressing. If you wish to meet with me for additional information or clarification, please contact this writer. [ 56 ] According to Mr. Partridge ’ s testimony before the Panel, he met with Ms. MacKinnon in December, 2010 and advised her that things had been improving.

He stated that he felt she was heading in the proper direction prior to the events of April 17, 2011.

[ 57 ] The Panel concluded that the reason for the termination of Ms. MacKinnon ’ s employment was her unsuitability for the role of Captain at CNSCF. They agreed that the evidence presented to it supported that conclusion. The decision reviews the allegations in the letter of termination, the evidence presented on each and sets out its findings. The analysis in the Panel decision satisfies the process element of the reasonableness analysis. The Panel ’ s conclusion that Ms.

MacKinnon was terminated for unsuitability falls within the range of reasonable alternatives available to it on the evidence presented. [ 58 ] The Panel undertook its own analysis of the evidence and made the determination that Ms. MacKinnon was not suitable for employment in a management position at CNSCF. This was appropriate given the broad remedial authority given to them and was reasonable in light of the evidence presented at the appeal hearing. (3)Was failure to document staff activity a proper element in the termination in light of the non-compliance by other employees? [ 59 ] Ms.

MacKinnon did not properly document the late arrival of several staff persons on the morning of April 17, 2010. This was one of the examples of unsuitability set out in her letter of termination and had been identified as a chronic problem at CNSCF. Ms. MacKinnon argues that this failure cannot be relied upon to justify her termination because there were no prior examples of discipline being imposed for this deficiency. [ 60 ] Ms. MacKinnon relies on the Newfoundland and Labrador Supreme Court decision in Lambe v. Irving Oil Limited (2002), 65 A.P.R. 183 .

In that case, the employee was fired for alleged misappropriation arising out of the use of a corporate credit card for personal expenses. The Court accepted the evidence of the employee that he was never advised of corporate policies with respect to the use of the credit card. In addition, the Court was not satisfied that there was sufficient evidence with respect to the existence and enforcement of the policies. [ 61 ] The employer argues that failure to follow the administrative policies in the past was an example of the “ administrative malaise ” at the institution which the employer was trying to correct.

Part of that process was the hiring of Ms. MacKinnon. [ 62 ] After reciting the positions of the parties, the Panel ’ s conclusion on this issue is found at p. 15 of its decision: The Panel accepts that Ms. MacKinnon’s failure to document lateness is an illustration of what Mr. Kelly described as administrative malaise and demonstrates her unsuitability for continued employment.

The panel acknowledges that while she may not have been specifically warned that failure to document staffing absences or lateness would result in her dismissal, her lack of action with respect to documentation formed part of the Employer’s conclusion regarding her unsuitability to continue in a leadership role and calls into question her ability to comply with the employers expectations of a future “production standard”. The Panel does not agree with the assertion that systemic non-compliance excuses Ms. MacKinnon’s behaviour.

Management was attempting to correct the “administrative malaise” which had become practice in the institution and needed Captains to set an example for others. There is evidence to show that Ms. MacKinnon admitted that not doing the reports was a mistake. She explained that she was going (sic) schedules and a bail, but she had time to participate in a staff brunch by obtaining eggs for it. She instead expected that the FOB system would act as a replacement for an administrative task that she was required to do as a manager.

These behaviours were inconsistent with the employer’s expectations as explained in the termination letter: “Your conduct and behaviour are inconsistent with the workplace culture we attempt to foster and encourage. Your behaviour in this regard is completely incompatible with the department’s policies and procedures and values.

Due to the leadership role within the facility and the nature of your misconduct, the necessary trust needed to sustain a viable employment relationship has been irreparably breached.” [ 63 ] As with other portions of its decision, the Panel has outlined its analysis and why it came to the conclusion that the failure to document lateness represented another example of Ms. MacKinnon ’ s unsuitability. Given the historic problems of staff compliance with administrative procedures, the Panel ’ s conclusion is reasonable.

To accept the appellant ’ s submission would mean that the Province would not be able to improve administrative practices at CNSCF without advising all employees of the importance of each policy and providing notice that they must be followed or risk potential discipline. [ 64 ] It is important to note that Ms. MacKinnon was not disciplined simply because of her failure to follow this administrative practice. The inadequate documentation of late arrivals was one part of the overall assessment of her suitability to act in a leadership role.

This is different than the situation in Lambe , where the employer only relied on breach of a specific policy on corporate credit card

use. [ 65 ] The Panel ’ s conclusion on this issue is reasonable in light of the nature of Ms. MacKinnon ’ s position and the ongoing management difficulties at CNSCF. (4)Did Ms. MacKinnon allow staff to sign the round logs with “ staff ” ? [ 66 ] On April 17, 2010, Ms. MacKinnon was the Captain responsible for the East and West Units at CNSCF. In addition, she was the Officer in Charge ( “ OIC ” ) of the facility. On that date, some staff employed in the North Unit did not properly document their rounds.

Instead of signing their name, the record book contained the notation that rounds had been conducted by “ staff ” . [ 67 ] The argument of Ms. MacKinnon is that she did not “ allow ” the improper documentation to take place because the staff in question were not directly under her supervision. Another captain was responsible for the North Unit that day. The employer argued that as OIC for CNSCF, Ms.

MacKinnon had general oversight for the entire institution. [ 68 ] The Panel ’ s conclusion with respect to the issue is found at p. 16 of its decision: Panel: We believe that the significant issue related to the signing of the log books is that Ms. MacKinnon seemed reluctant to accept responsibility for the issue with rounds in the North Unit while she was OIC Captain, not that the log books were signed with the word “staff”. When Andy McGann told Ms. MacKinnon that rounds were not done properly, Ms. MacKinnon dismissed his concerns and told him that it was his problem.

As OIC in charge she was responsible for running the institution and was expected to take corrective action when issues were brought to her attention. She had an obligation as OIC in charge to take corrective action when she became aware of the issue with rounds and did not; rounds were falsified on North unit and rounds were missed when Ms. MacKinnon was supervising the unit. Therefore, as the termination letter states, the Panel agrees that Ms. MacKinnon did, in fact, allow staff to sign the log rounds with “staff” as opposed to signing their name or initialling. [ 69 ] As the Panel explains, Ms.

MacKinnon ’ s role as OIC carries with it overall responsibility for the functioning of the institution and, to that extent, she allowed the improper documentation to occur. With that explanation the Panel ’ s conclusion appears reasonable. (5)Was the Panel entitled to consider matters outside of the complaints set out in the termination letter? [ 70 ] This issue is related to the question of improperly documented staff rounds. After discussing the merits of the allegations, the Panel went on to consider Ms.

MacKinnon ’ s interviews with the investigators who were examining the April 17, 2010 incident and made the following comments at pp. 17 and 18 of its decision: The Panel reviewed Ms. MacKinnon’s May 31st interview with Fred Cumby regarding her knowledge of rounds being done.

The following is the Panel’s transcription of the relevant aspects of Captain MacKinnon’s account of her conversation with Andy McGann on April 17th: “He came and he said, what about the rounds and he said we weren’t assigned rounds and stuff and blah blah blah and I said you’re old enough and you’ve been in corrections long enough that you know to do rounds on the unit so don’t give me any excuses...and he was all worried about it...

He came throughout the day it was a busy day...after the incident... and he was all worried about the rounds or something and I said look you know what Andy, you had enough staff to do the rounds and you know that rounds need to be done... I do remember he expressed that concern to me and I said that’s your own fault - because it is as far as I’m concerned. If you’re working

a unit you know that rounds have to be done I don’t need to guide you by the hand to do it.” She also said: “It wasn’t my unit so I wasn’t really focusing (sic) on the North...Andy was worried that the rounds weren’t done and I didn’t get into itmuch with him ... if he’s coming to me like he’s that paranoid, obviously he’s done something wrong, right?...” The Panel believes that in light of Ms.

MacKinnon’s previous management experience, and as OIC on April 17th, she should haveimmediately understood the severity of the situation that Andy McGann brought to her attention and should have raised it proactivelyrather than dismissing his concern as his responsibility. As OIC, Captain MacKinnon was responsible for duties outlined in P-36 whichincluded but were not limited to staffing, emergency response and ensuring all post records and documentation are completed as perpolicy and procedures.

Even if she believed that Captain Korecki was monitoring North, she could have raised the issue with him toensure it was properly addressed. In addition, Ms. MacKinnon was not immediately forthright about the issue with rounds in North: In her April 27th interview with TroyFoote, she indicated that she was not aware that rounds weren’t done; in her May 31 interview with Fred Cumby, she admitted she knewthat rounds weren’t done. The evidence from the interview leads the Panel to conclude that Ms.

MacKinnon’s conduct and behaviourwas inconsistent with the Employer’s expectation that an employee in a management position be truthful and accept responsibility forhis/her actions. [71] Ms. MacKinnon says that the issue of her honesty was not referred to by the employer in her termination letter and, therefore,should not have been considered by the Panel. In support of this position, Ms.

MacKinnon relies on the arbitration decision in Re UnitedSteel Workers of America and Aerocide Dispensers Limited (1965), (ON LA), 15 L.A.C. 416 where the ArbitrationPanel stated at pp. 426 and 427: This conclusion depends, of course, on a holding that unsuccessful persuasion does not come within the term “instructed” on which thecompany founded a central part of its case. The evidence shows that the grievor was discharged without previous interview by anyrepresentative of management. It was not even shown that Mrs.

Rose was interviewed by the management representatives whorecommended or effected the discharge, and it is not an unfair conclusion from the evidence that the facts on which managementbelieved it was acting lost something in the translation. The board is justified in a case of challenged discharge to hold the employerfairly strictly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved.

This is notto say that the board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit anassigned cause to be reformed into one different from it merely because the evidence does not support the assigned cause but rather onesomething like it. The parties prepare their submissions to arbitration according to the issues raised by the grievance and the answer oranswers thereto, and the case comes to arbitration after having run the gauntlet of the grievance procedure and discussions therein.

Ifanother cause of discipline emerges from the evidence other than the one stated at the time, it is not an automatic conclusion that theemployer would have treated it the same way merely because it finds it necessary to say so because of the turn of the evidence at thearbitration. This explanation underlies the board’s holding that the stated grounds of discharge were not established in fact. [72] This passage indicates that an employer is not automatically restricted to the four corners of a termination letter.

There is somediscretion in assessing the issue of cause, provided that the parties have had a fair opportunity to know the matters in issue and preparefor the hearing. In this case, the termination letter referred to Ms. MacKinnon’s response to the investigation report as one of theemployer’s concerns. [73] The Panel’s comment concerning Ms. MacKinnon’s truthfulness was specific to her response to the issue of staff rounds on theNorth Unit.

This subject was clearly raised in the termination letter and was subject to evidence and submissions at the appeal hearing. [74] That response forms part of the foundation for the following comments in the termination letter: Your conduct and behaviour are inconsistent with the workplace culture we attempt to foster and encourage. Your behaviour in thisregard is completely incompatible with the department’s policies and procedures and values.

Due to the leadership role within thefacility and the nature of your misconduct, the necessary trust needed to sustain a viable employment relationship has been irreparablybreached.

[ 75 ] In my view, it was reasonable for the Panel to consider Ms. MacKinnon ’ s response to the investigations as part of their review of the deputy head ’ s conclusion that she was not a suitable management employee. Their mandate is broad and includes determining whether the decision should be varied or sent back for further consideration with recommendations. Even if it could be argued that the Panel went beyond the specific allegations listed in the termination letter, I believe that a reasonable

interpretation on the underlying legislation would permit this. (6)What is the effect of failure to comply with the notice provisions in the Regulations? [ 76 ] The letter of June 22, 2010 advised Ms. MacKinnon that her probationary employment was being terminated effective immediately.

Section 141 of the Regulations sets out the procedure for termination of probationary employment. Subsection 3 states as follows: Except as provided in

Section 142, a notice of termination for cause must be given at least 10 days before the effective date of termination stated in the notice. [ 77 ] In its decision, the Panel determinated that this provision was irrelevant for the following reasons (at p. 24): Therefore, based on the Panel’s prior conclusions that Ms.

MacKinnon was a probationary employee at the time of her termination and that she was terminated for unsuitability, the 10 day notice period was not required and this issue becomes irrelevant. [ 78 ] As discussed in paras. 25 to 28 of this decision, termination of a probationary employment contract for unsuitability is termination for cause. The Panel appears to have acknowledged this when it made the following comments at p. 10 of its decision: Panel: The Panel reviewed the law related to dismissal for unsuitability and for cause.

The Panel considered the degree of cause required to terminate a probationary employee versus a permanent employee and concluded that from a review of the case law, the decree of cause is different for a probationary employee. [ 79 ] After quoting from the decision of Justice Hood in Survival Systems, supra, the Panel stated at p. 11: Justice Hoode (sic) concluded that to dismiss a probationary employee, just cause exists if the employee is, in the opinion of the employer, deemed “unsuitable” for a job; that the employer can demonstrate a bona fide reason for the dismissal; and that an employee has to be given a fair opportunity to demonstrate his ability. [ 80 ] In addition, the employer had raised a preliminary objection to the Panel ’ s jurisdiction to hear Ms.

MacKinnon ’ s appeal. It alleged that the process was only available to civil servants who were dismissed for cause, and that Ms. MacKinnon was dismissed for unsuitability, not cause . It should be noted that Ms. MacKinnon ’ s appeal was made pursuant to s. 153(2)(

c) of the Regulations, which provides for the appeal of a decision made by a deputy head under s. 27 of the Civil Service Act , which states: A deputy head may for cause dismiss an employee in his department from employment in accordance with the regulations or the terms of a collective agreement. [ 81 ] The Panel concluded that it had jurisdiction to hear Ms. MacKinnon ’ s appeal and, therefore, must have satisfied itself that the termination of employment was for cause, pursuant to s. 27 of the Civil Service Act . That aspect of its decision has not been challenged on this judicial review.

[ 82 ] This finding is consistent with the Panel ’ s discussion of the basis for the termination of Ms. MacKinnon ’ s employment. At pp. 10 and 11, it appears to accept the law as set out in Survival Systems, supra, that unsuitability is one example of just cause for termination of a probationary employee. [ 83 ] I cannot reconcile the Panel ’ s conclusion on jurisdiction with the determination that s. 141(3) of the Regulations was irrelevant because the termination was for unsuitability, rather than cause. There was no explanation in the Panel ’ s decision which would resolve this apparent inconsistency.

In my view, this makes it unreasonable for them to have concluded that s. 141(3) was irrelevant. [ 84 ] Having determined that this aspect of the Panel ’ s decision was unreasonable, I must consider what remedy, if any, should be given. Normally such a conclusion would result in referral of the issue back to the tribunal for reconsideration. This recognizes that they are the party best suited to make this decision in light of their knowledge and experience. The court should not substitute its

interpretation of a reasonable outcome for that of the tribunal. [ 85 ] In some circumstances, it may be appropriate for the court to consider the range of potential reasonable outcomes which might be available to the decision maker. If it can be satisfied that it is in a position to identify the range of reasonable outcomes, it may be able to ascertain whether the outcome for the applicant would be any different if the issue was sent back for reconsideration. [ 86 ] Both parties have provided detailed written submissions on the issue of the effect of a failure to comply with s. 141(3) of the Regulations.

The respondent says that if the Panel ’ s decision on this issue if found to be unreasonable, it should be asked to reconsider the question. The applicant strongly argued that the Court should decide the issue, rather than remit it to the tribunal because it is primarily a question of law that the Court can, and should, answer. She argues that it would be the best use of time and resources to have the matter settled without a further hearing. [ 87 ] There is merit in the applicant ’ s submissions concerning efficient use of judicial and legal resources. In order to assess whether I should consider deciding the

interpretation question, I must examine the nature of the issue and the principles to be applied. [ 88 ] The respondent submits that the analysis should not be limited to s. 141(3) in isolation. It points out that the regulation making power found in s. 45(1) (

n) of the Civil Service Act provides authority to make regulations respecting “ procedures for suspension or dismissal for cause ” .

It also points out s. 148(1) of the Regulations which provides as follows: 148(1)Termination of the employment of a probationary employee or term employee may be effective immediately if the Deputy Head notifies the Commission and notifies the employee in writing to that effect and pays the employee an amount equal to their regular pay for the notice period required under subsection 141(3). [ 89 ] The respondent argues that the Regulations are intended to be procedural in nature and not substantive.

In addition, it says that the termination of employment for probationary employees for cause can be done by providing ten days notice or, alternatively, can be immediate, with payment equivalent to that notice. [ 90 ] In my view, the Act and Regulations must be considered collectively. It is clear that if the employer wishes to terminate the employment of a probationary employee, they have an option to do so immediately or by providing ten days notice. In this case, the employer chose immediate termination, which means that s. 148(1) is the applicable provision.

That leaves the question as to the affect of the failure to pay Ms. MacKinnon ten days salary. [ 91 ] The applicant ’ s submissions focus almost exclusively on s. 141(3) of the Regulations. She says that providing ten days prior notice of termination is mandatory and failure to do so renders the termination void ab initio . She makes reference to a number of employment law cases in support of that position. In each of these cases, the deficiency in the notice resulted in the denial of the employee ’ s right to be advised of the employer ’ s concerns and an opportunity to respond. For example, in Kingsbury v.

Heighton , 2003 NSCA 80 , the Regulations pursuant to the Police Act stated that where an investigation disclosed that a disciplinary default may have been committed, the member was to be provided with a notice of meeting and an opportunity, with counsel or union representation, to hear the results of the investigation and admit or deny the allegations. The failure to provide this notice and hold the meeting rendered the discipline void.

[92] Similarly, in Hudston v. Halifax Regional School Board, (NS SC), [1999] N.S.J. 245, the Court wasconsidering the suspension of a teacher for alleged sexual harassment. Contrary to the requirements of the Education Act, the teacherand School Board were not provided with a copy of the superintendent’s report and, as a result, the teacher had no opportunity to respondto the allegations.

The Court concluded that the Board’s decision to suspend was void ab initio for failure to comply with the EducationAct. [93] The one non-employment case relied upon by the applicant is Society Promoting Environmental Conservation v. Canada(Attorney General), 2003 FCA 239 involving an environmental organization’s application for judicial review of a decision to expropriateland for military testing. In that case, the hearing officer did not provide the statutory public notice prior to holding public hearingsconcerning the expropriation.

The Federal Court of Appeal reviewed the existing jurisprudence concerning when administrative actionwill be set aside for a breach of a statutory provision.

The analysis to be followed is set out at para. 35 of the decision: 35The jurisprudence of the Supreme Court of Canada on the mandatory/directory distinction and the contextual analysis now requiredby a pragmatic and functional approach to issues of administrative law suggest a reformulation of the legal tests for determining when areviewing court should set aside administrative action on the ground that it was taken in breach of a statutory provision of a procedural orformal nature.

An analytical framework should include the following considerations: (1)Is compliance with the statutory provision obligatory or permissive? If it is permissive, the inquiry is at an end because no legalconsequences normally follow merely from non-compliance with a provision that is permissive. If, on the other hand, the provision isobligatory, the consequences of non-compliance must be determined by reference to the circumstances of the case, including the factorsdescribed in (4) below. Whether a provision is obligatory or permissive is a question of statutory

interpretation to be undertaken according to the usualprinciples, including the ordinary and grammatical meaning of the statutory text, and the legislative purpose, both general and specific. Thus, for example, “shall” normally indicates a legislative intention to impose a legal duty to comply, wile “may” normally indicates thata procedural provision is permissive. (2)If compliance with a statutory provision is obligatory, a refusal by a public authority to comply when requested may enable a court toissue an order requiring it to perform its legal duty.

The circumstances in which a court will issue an order of mandamus define when itmay order compliance with a formal or procedural statutory provision. (3)If compliance with a statutory provision is obligatory, failure to comply may enable a court on an application for judicial review to setaside or declare invalid administrative action taken in breach of the statutory duty. Legislative intent must be the focus of the inquiry,both when a court is determining whether a statutory provision is obligatory or permissive and, if obligatory, what should be the legalconsequences of non-compliance.

However, since the factual circumstances of non-compliance are infinitely variable, legislative intent regarding the consequences of non-compliance must be determined in light of all the relevant circumstances of the particular case. In contrast, whether a provision isobligatory or permissive is not determined by reference to particular facts. It is a question of statutory

interpretation that does not dependon the facts of any given case. (4)The factors to be considered in determining whether non-compliance with an obligatory statutory provision invalidates administrativeaction including the following: (i)The importance of the provision, both as regards the overall purposes of the statutory scheme and the purposes served by theimposition of the procedural duty.

A high degree of importance in either respect indicates a legislative intent that administrative actiontaken in breach of the procedural provision may be set aside. (ii)The seriousness of the breach of the statutory duty: a technical violation is an indicator that the court should not intervene, while apublic authority that flouts the statutory requirement can expect judicial intervention.

(iii)The impact of the impugned administrative action on the rights of individuals: the more important the individual rights affected and the more serious the effect on them, the more likely it is that a reviewing court will set aside administrative action taken in breach of a statutory procedural provision. (iv)Conversely, the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity. (v)The nature of the administrative process of which the statutory provision is part: the meticulous protection of procedural rights is likely to be regarded as more important when they are integral to a process of a broadly adjudicative nature than when they are part of an essentially political process culminating in an order of general application.

Courts have traditionally tended to exercise less strict procedural surveillance over the process (including public consultation) whereby ministers determine broad polycentric public policy questions. (5)Even if a failure to comply with an obligatory statutory procedural provision is found to invalidate administrative action, a reviewing court still retains a discretion to deny relief by reference to one or more of the accepted discretionary remedial bars. Some of these may already have been taken into account in determining whether, in all circumstances, the breach invalidat

[…]