Justice Canada lawyer and competitive curler wins second judicial review case against employer
Federal Court rules Saskatoon-based Dale Kohlenberg again denied procedural fairness
A Justice Canada lawyer will get a second chance to advance a defamation and breach of privacy grievance after the Federal Court judge ruled the department’s faulty process tainted its decision to dismiss his complaint.
An assistant deputy minister in the Department of Justice dismissed Dale Kohlenberg’s grievance for missing the 25-day deadline prescribed by the collective agreement, even though neither party raised the issue at the hearing and management had led him to believe the complaint would be considered timely.
“The Applicant was never afforded an opportunity to speak to the timeliness of his grievance. This was, in my view, a fatal breach of the fundamental principle of administrative law that a person must know the case being made against them and be given an opportunity to answer it before the delegate that will make the decision,” wrote Justice Richard Mosley, ordering a fresh hearing before a different adjudicator.
It’s the second time Kohlenberg has succeeded with a judicial review application in an ongoing dispute over his work description dating all the way back to 2011.
That’s when Kohlenberg objected to his classification following a department-wide reshuffle, claiming his work fit more accurately into higher level descriptions. His three-level grievance was rejected at every turn, but Kohlenberg won a reconsideration in 2017 when a different Federal Court judge – Justice Henry Brown – found the grievance procedure in his case was shot through with procedural flaws, rendering the third-level decision “unsustainable on judicial review.”
According to Justice Mosley’s decision, it was during the discovery phase of the first judicial review that Kohlenberg became aware of the document that formed the basis of his defamation grievance: a memo prepared for the third-level decisionmaker by a senior labour relations advisor in the Department of Justice.
The ruling explains that the memo incorrectly stated that Kohlenberg had not met his performance expectations for 2013-2014 and suggested that he had been disciplined for “behaviours described” in his performance review, when in fact discipline had only been imposed for one incident.
“The use of the word ‘behaviours’ could be construed as implying more than one event,” Justice Mosley wrote.
According to the ruling, Kohlenberg wrote to the memo’s author, demanding an apology and full retraction, as well as $100,000 compensation and the names of the people who supplied the information
After senior ministry officials directed him to the grievance process as the appropriate forum, Kohlenberg filed his complaint about the incident, alleging the contents of the memo were defamatory and that the disclosure of the disciplinary action constituted a breach of privacy, Justice Mosley’s decision says.
After the adjudicator dismissed the defamation grievance for its lack of timeliness, she went on to alternatively assess the complaint on its merits, finding it unsubstantiated.
However, Justice Mosley’s decision said he would have found the alternative decision unreasonable as it applied the incorrect test for defamation.
“I consider myself to be a loyal and dedicated civil servant who simply wishes to be treated fairly and lawfully by my employer,” Kohlenberg said in a statement to Court Report Canada. “I had preferred not to bring this matter to the Federal Court for a hearing (and decision) and attempted on several occasions to resolve it fairly and in accordance with existing law with my employer without being compelled to do so.”
“I am content now to let the decision speak for itself,” he added.
In contrast to his record at the Federal Court, Kohlenberg enjoyed considerably less success at last year’s Tim Hortons Brier in Kingston, Ont., where he went 0-7 as a member of Team Nunavut.
But just making it that far was a dream come true for Kohlenberg, as he told the CBC following his unusual journey to the tournament.
After curling competitively since the age of 13, the story says that he was recruited to a team while on a temporary work-related secondment to Iqaluit. The team then went undefeated at the Nunavut trials, securing Kohlenberg and co a place at the prestigious Brier.
"I think it's probably fair to say that all young men and boys who pick up curling and have a competitive spirit … dream of going to the Brier," he told the CBC in March 2020.
"By the time I hit my early 40s and had not made it there, I had resigned myself to the fact that that dream had died," he said. "So when this opportunity came up … it was as if my dream had come true."
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