Executive Summary: Key Legal and Evidentiary Issues

• Appeal from a Federal Court judgment dated 23 August 2024 dismissing a judicial review of a grievance decision upholding the termination of Marc-André Rouet’s employment at the Ministère de la Justice less than a year after his hiring, while he was still in his probationary period.

• Allegations that natural justice and procedural fairness were breached because the employer did not warn that it was conducting a final performance evaluation and did not provide a short performance review report and a chronological summary of events prepared after the dismissal, which were said to have been used without disclosure.

• Federal Court finding that Rouet did not prove any breach of natural justice or procedural fairness, in particular because he did not show that the assistant deputy minister had actually consulted the disputed documents, and he did not seek a certified record under Rule 317 of the Federal Courts Rules or clarify matters through cross-examination.

• Argument on appeal that the Federal Court erred regarding the use of Rule 317 and that it should have treated the list of documents in the Attorney General’s initial memorandum as a judicial admission that the disputed documents were before the assistant deputy minister.

• Conclusion by the court that, in the circumstances, recourse to Rule 317 was appropriate to establish what documents were before the decision-maker, that no clear and unambiguous judicial admission had been made, and that the evidence did not show a breach of natural justice or procedural fairness in the grievance process.

• Rejection of the contention that failure to follow internal evaluation guidelines and policies “to the letter” automatically amounts to a breach of natural justice or procedural fairness; the court noted Rouet had been informed of expectations and deficiencies, and it dismissed the appeal with costs.

Facts and background

Marc-André Rouet appealed a judgment of the Federal Court dated 23 August 2024 (2024 CF 1315). The Federal Court had dismissed his application for judicial review of a decision by the assistant deputy minister in the management sector of the Ministère de la Justice du Canada, who had rejected his grievance at the final level of the grievance procedure. By that grievance, Rouet contested his employer’s decision to terminate his employment less than one year after he was hired, while he was still in his probationary period.

Alleged breaches of natural justice and procedural fairness

Rouet claimed that natural justice and procedural fairness had been breached. He argued that his former employer did not inform him that it was conducting a final performance evaluation and did not provide him with two documents prepared by his former supervisor a few weeks after his dismissal: a short performance review report and a chronological summary of events. He maintained that the assistant deputy minister relied on these two documents when assessing the merits of his grievance, even though they had not been disclosed to him.

Judicial review and evidentiary issues

The Federal Court concluded that Rouet had not met his burden of showing that natural justice and procedural fairness had been violated. It found that he had not demonstrated that the assistant deputy minister had actually consulted the two documents. The court noted that Rouet had not requested a certified record under Rule 317 of the Federal Courts Rules and had not cross-examined the employer’s witness, steps that could have clarified whether the disputed documents were before the assistant deputy minister. The application for judicial review was therefore dismissed.

Arguments and reasoning on appeal

On appeal, Rouet argued that the Federal Court erred in its application of Rule 317 and that resorting to this rule was not necessary to establish that the disputed documents were before the assistant deputy minister. He also argued that the Federal Court erred by refusing to examine alleged violations related to the dismissal decision itself. The court agreed that no party is obliged to use Rule 317 in every case, but held that, in the circumstances of this file, it was appropriate for the Federal Court to determine that resort to Rule 317 was required because it did not have the elements needed to decide the matter. The burden lay on Rouet to show that the documents were before the assistant deputy minister, and without certification of the documents in the assistant deputy minister’s possession at the time of the decision, the Federal Court was not convinced that this was so; an affidavit asserting that he had been deprived of documents was not sufficient.

Rouet also submitted that the list of documents in the Attorney General of Canada’s initial memorandum in the Federal Court amounted to a judicial admission that the disputed documents were before the assistant deputy minister. The court acknowledged that the memorandum could lead one to believe that the assistant deputy minister had the documents before him, but found no judicial admission because the alleged admission was not stated clearly and unambiguously. The list came from a draft briefing note prepared for the assistant deputy minister and introduced in evidence by the Attorney General’s declarant. The documents were mentioned as annexes to that draft note, but the declarant did not confirm that the justificatory documents were actually before the assistant deputy minister or that he considered them. Although Rouet exercised his right of cross-examination, he did not ask the declarant about the transmission of the briefing note and its annexed documents or seek confirmation that the documents were indeed before the assistant deputy minister. In the absence of certification of the documents that were before the assistant deputy minister, the court held that it could not conclude that there had been a breach of natural justice and procedural fairness in the grievance process.

Policies, performance evaluation and fairness

As to alleged violations relating to the termination decision, the court noted that it had to place itself in the position of the Federal Court and focus on the decision that was the subject of judicial review. Rouet did not convincingly show that the employer’s alleged failure to follow its various evaluation guidelines and policies constituted a breach of natural justice and procedural fairness. The court stated that omitting to follow such guidelines and policies “to the letter” does not automatically amount to a failure of natural justice and procedural fairness, and it recorded that Rouet acknowledged at the hearing that the employer was not obliged to conduct a formal performance evaluation at the time of the dismissal. Even though the justificatory documents were prepared after the dismissal, the record showed that Rouet had been informed throughout his employment of the employer’s expectations and of the skills he had to improve, including in a mid-year performance evaluation. The termination letter referred to deficiencies in legal document drafting and written communications in general, in his court appearances and in his interpersonal relations. Although the letter did not mention all the events that led to the decision to terminate his employment, the events mentioned in the justificatory documents were treated as examples of deficiencies, and Rouet did not show that the employer was obliged to list all of the alleged deficiencies.

Outcome

For all of these reasons, the court dismissed the appeal. The appeal of Marc-André Rouet against the Procureur général du Canada (Ministère de la Justice) was rejected with costs.