A-689-75
Attorney General of Canada (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, May 11 and 12, 1976.
Judicial review—Public Service—Employee rejected during
probationary period—Commencing grievance, claiming dis
missal disciplinary and no reasons given—Employer objecting
to jurisdiction of adjudicator under section 91 of Public
Service Staff Relations Act, claiming rejection not a discipli
nary discharge—Adjudicator allowing grievance—Public Ser
vice Staff Relations Board finding adjudicator had not erred
in law or exceeded jurisdiction—Applicant seeking judicial
review—Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 28—Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, s. 91.
One "J", a public servant, was rejected during his probation
ary period under section 28(3) of the Public Service Employ
ment Act. He instituted a grievance, claiming he had been
dismissed without reasons and that the dismissal was actually
disciplinary. The employer responded at each level of grievance
by stating that the discharge was not disciplinary, but was a
rejection during probation under section 28. The grievance was
finally referred to an adjudicator under section 91 of the Public
Service Staff Relations Act. The employer objected to the
jurisdiction of the adjudicator, arguing that as a rejection
during probation, the dismissal was not the proper subject
matter of a reference under section 91. The adjudicator held
that the rejection constituted a disciplinary discharge, thus
giving him jurisdiction, and went on to hear the case on the
merits. He allowed the grievance, and ordered reinstatement.
The employer then referred the question to the Public Service
Staff Relations Board which found that the adjudicator had not
erred in law or in jurisdiction. This application resulted, and
applicant continued to rely on the argument that since the
employer had characterized the dismissal as a rejection for
cause, this was sufficient for section 28(3) and (4) of the Public
Service Employment Act to apply and to oust the jurisdiction
of an adjudicator under section 91(1)(b) of the Public Service
Staff Relations Act and that an adjudicator cannot inquire into
a particular case to determine whether the employer's action
was a rejection for cause or a disciplinary discharge.
Held, allowing the appeal, the decision of the Board is set
aside. Applicant's submission is answered by the Cutter
Laboratories case ([1976] 1 F.C. 446) where, concerning the
duty of a tribunal faced with a question as to its jurisdiction, it
was stated that, generally, a tribunal must take a position, even
though it cannot make a binding decision, as to whether or not
it has jurisdiction. Here, on the evidence, the decision cannot
stand. The letters to J and the Public Service Commission are
clear and unequivocal statements of rejection for cause within
the meaning of section 28(3) and (4) of the Public Service
Employment Act, and the evidence shows that J gave his
employer cause for complaint. The Board followed the Fardella
case ([1974] 2 F.C. 465), however, it is distinguishable on its
facts which do not clearly point to rejection, as in the present
situation. Where there has been a rejection, it cannot be
classified as a dismissal in order to create jurisdiction under
section 91 of the Public Service Staff Relations Act. The
conduct here complained of is typical of behaviour which would
justify rejection during probation; it might also be grounds for
dismissal but clearly, the intention was to reject. Nor was it a
disciplinary action camouflaged as a rejection. Such'could only
be the case where no bona fide and valid grounds for rejection
existed. As to whether action to separate an employee from his
employment that is, in form, under one authority can be treated
as having been taken under another authority, for the adjudica
tor to have jurisdiction under section 91(1)(b) on these facts, it
would be necessary for the section to have included words to
the effect of "a rejection for cause during the probationary
period". The whole intent of section 28 of the Public Service
Employment Act is to enable the employer to assess an
employee's suitability. If, at any time, the employee is found
unsuitable, he can be rejected without redress through adjudi
cation. To hold that a probationary employee acquires vested
rights to adjudication is to ignore the plain meaning of both
sections 28 and 91. While J had the right to grieve under
section 90 of the Public Service Staff Relations Act, the right
to section 91 adjudication is restricted to grievors coming
within the four corners of section 91(1).
Cutter Laboratories International v. Anti-dumping Tri
bunal [1976] 1 F.C. 446, followed. Fardella v. The Queen
[1974] 2 F.C. 465, distinguished. Bell Canada v. Office
and Professional Employees' International Union [1974]
S.C.R. 335, applied.
APPLICATION for judicial review.
COUNSEL:
P. J. Evraire for applicant.
M. W. Wright, Q.C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Public
Service Staff Relations Board rendered on Novem-
ber 7, 1975, with respect to an adjudication heard
by Mr. J. F. W. Weatherhill, concerning an
employee, one Roland B. Jacmain.
Jacmain had been an employee with the Depart
ment of National Revenue, Taxation, prior to
entering a competition with the Office of the
Commissioner of Official Languages. On May 16,
1973, Jacmain was appointed to the Complaints
Branch of the Commissioner of Official Lan
guages as an AS 7.
By letter dated February 25, 1974, the Commis
sioner of Official Languages notified Jacmain that
he was to be rejected during his probationary
period pursuant to the provisions of subsection
28(3) of the Public Service Employment Act,
R.S.C. 1970, c. P-32'. In that letter, the Commis
sioner said, inter alia:
You will remember that on October 23rd, 1973 I informed you
orally of this intention.
Said letter made no reference to any other ground
for rejecting Jacmain. On the same date, and, to
' 28. (1) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate in
any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the probation
ary period, give notice to the employee and to the Commission
that he intends to reject the employee for cause at the end of
such notice period as the Commission may establish for any
employee or class of employees and, unless the Commission
appoints the employee to another position in the Public Service
before the end of the notice period applicable in the case of the
employee, he ceases to be an employee at the end of that
period.
(4) Where a deputy head gives notice that he intends to
reject an employee for cause pursuant to subsection (3) he shall
furnish to the Commission his reasons therefor.
comply with the provisions of subsection 28(4), the
Commissioner wrote to the Public Service Com
mission as follows:
Re: Roland Jacmain
Pursuant to section 28(3) and (4) of the Public Service
Employment Act, I hereby give you notice of my intention to
reject the above named employee for cause.
During the probationary period I have found that Mr. Jac-
main was not able to fulfil a function in this office to my
satisfaction.
I am enclosing a copy of the notice sent to him today.
It is not contested that the notice of rejection of
February 25, 1974 was within Jacmain's proba
tionary period.
On February 26, 1974, Jacmain instituted a
grievance on the basis that he was, in fact, being
dismissed from his position with no reasons having
been given and stating that subject action by his
employer was "in truth, a disciplinary dismissal".
At each level, the employer answered the griev
ance by saying that Jacmain's discharge was not
disciplinary, but was, rather, a rejection during
probation pursuant to section 28 of the Public
Service Employment Act (supra). Jacmain's griev
ance was finally referred to adjudication under
section 91 of the Public Service Staff Relations
Act, R.S.C. 1970, c. 1 3 -35 2 .
2 91. (1) Where an employee has presented a grievance up
to and including the final level in the grievance process with
respect to
(a) the interpretation or application in respect of him of a
provision of a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and his grievance has not been dealt with to his satisfaction, he
may refer the grievance to adjudication.
(2) Where a grievance that may be presented by an
employee to adjudication is a grievance relating to the interpre
tation or application in respect of him of a provision of a
collective agreement or an arbitral award, the employee is not
entitled to refer the grievance to adjudication unless the bar
gaining agent for the bargaining unit to which the collective
agreement or arbitral award applies signifies in prescribed
manner
(a) its approval of the reference of the grievance to adjudica
tion; and
(b) its willingness to represent the employee in the adjudica
tion proceedings.
Before the adjudicator, the employer's counsel
objected to the jurisdiction of the adjudicator to
hear the reference under said section 91 on the
basis that the action taken with respect to Jacmain
was not a disciplinary discharge, but merely a
rejection of an employee during his probationary
period pursuant to section 28 of the Public Service
Employment Act (supra) and thus could not be
the subject matter of a reference under said
section 91.
After considering the submissions of the parties
and after reviewing the evidence before him, the
adjudicator, by a decision dated August 1, 1974,
concluded that the employer's rejection of Jacmain
constituted a disciplinary discharge thus clothing
him with jurisdiction under section 91 to hear the
grievance on its merits. After holding a hearing on
the merits, and by a decision dated January 31,
1975, the adjudicator held that there had been
insufficient reason for Jacmain's discharge and
accordingly allowed his grievance, and ordered
reinstatement in his position and reimbursement
for his loss of earnings.
On April 10, 1975, the employer referred to the
Public Service Staff Relations Board the question
of the jurisdiction of the adjudicator to hear Jac-
main's reference under section 91 of the Public
Service Staff Relations Act. By decision dated
November 7, 1975, said Board held, inter alia:
a) the Adjudicator had not erred in law or exceeded his
jurisdiction by agreeing to hear the case notwithstanding that
Mr. Jacmain was on probation at the time his employment
was terminated or that he purportedly had been rejected
under subsection 28(3) of the Public Service Employment
Act;
b) the Adjudicator had not erred in law or jurisdiction when,
having concluded that the reasons for dismissing Mr. Jac-
main were of a disciplinary nature, he heard the case as a
grievance under section 91 of the Public Service Staff Rela
tions Act;
c) on the basis of the evidence and reasoning in the
Adjudicator's decision of January 31, 1975, the Adjudicator
had not erred in law in concluding that Mr. Jacmain had not
been rejected during his probationary period and had been
discharged without sufficient reason.
This section 28 application is to review and set
aside that decision.
The principal submission of applicant's counsel
before this Court was also the principal argument
relied on in the three hearings before the adjudica
tor, namely, that since the employer had charac
terized the action here taken as rejection for cause,
this was sufficient for section 28(3) and (4) of the
Public Service Employment Act to apply and was
also sufficient to oust the jurisdiction of an
adjudicator under section 91(1)(b) of the Public
Service Staff Relations Act, and that an adjudica
tor was not entitled to inquire into the facts of a
particular case to determine whether, in fact, the
action taken by an employer in that case, was a
rejection for cause or a disciplinary discharge. As
indicated at the hearing, this submission is, in my
opinion, fully answered by the decision of this
Court in the case of Cutter Laboratories Interna
tional v. Anti-dumping Tribunal 3 and more par
ticularly by the comments of the Chief Justice at
page 453 under the heading Appendix A which
reads as follows:
At the risk of increasing, rather than decreasing, the confu
sion that my reasons herein may create, I consider it worth
while to comment, by way of an appendix, on the duty of a
Tribunal faced with a question as to whether it has jurisdiction
when it has no authority to make a binding determination on
that question. In my view, speaking very generally, when such a
question arises, a Tribunal must take a position, even though it
cannot make a binding decision, on the question whether what
it is being asked to decide is something that Parliament has
given it authority to decide. It should not waste public monies,
and put interested parties to incurring expenses, on an inquiry
that it is satisfied is outside its jurisdiction. In order to reach a
conclusion on such a question, it may, depending on the circum
stances, have to hear evidence with regard thereto. If it con
cludes that it has no jurisdiction and consequently refuses to
proceed, a person who feels aggrieved by that conclusion has
his remedy in mandamus. If it concludes that there is a
sufficient probability that it has jurisdiction to warrant it
proceeding and announces that it proposes to proceed, a person
who feels aggrieved by that conclusion has his remedy in
prohibition or a section 28 application in respect of the Tribu
nal's ultimate decision depending on the circumstances. Com
pare the Appendix to the Reasons given in the Danmor Shoe
Co. case [1974] 1 F.C. 22.
Turning now to the evidence adduced before the
adjudicator, after a careful review thereof, I have
concluded that the Board's decision cannot be
allowed to stand and that this section 28 applica
tion must be granted. The letters of February 25,
1974 to Jacmain and to the Commission are clear
and unequivocal in that they reject Jacmain for
3 [1976] 1 F.C. 446.
cause within the meaning of subsections 28(3) and
(4) of the Public Service Employment Act
(supra).
The evidence as to cause adduced before the
adjudicator was, inter alia, to the effect that Jac-
main made many complaints relating to the
administration of the office, that he complained
constantly, in an unpleasant manner, loudly and
bitterly, that "it was Mr. Jacmain's attitude, as
displayed in tactlessness and impoliteness, in out
bursts and the slamming of doors, and in continual
`jeremiads', that gave his employer cause for
complaint."
The Board, after observing that the representa
tions made by the parties in this case were basical
ly the same as those placed before the Board in the
Fardella case, purported to follow their decision in
that and earlier cases and sustained the adjudica
tor's view that, having found, in fact that the
dismissal was a disciplinary discharge, the
adjudicator had jurisdiction to deal with the griev
ance under section 91 of the Public Service Staff
Relations Act (supra). The - Board further
observed that the Fardella case had been the
subject of a section 28 application to the Federal
Court of Appeal and referred to the judgment of
Chief Justice Jackett in that case 4 . In that case, in
discussing the question as to whether the applicant
was dismissed or rejected, the Chief Justice stated
at page 480:
While the question is not free from doubt on the material in
this case, I am not prepared to disagree with the conclusion of
the Adjudicator and of the Board that there was a dismissal. In
coming to that conclusion, I do not wish to be taken as
expressing an opinion that, where there has been, in fact, a
rejection under section 5 or under section 28 of the Public
Service Employment Act, it can be classified as a dismissal in
order to create jurisdiction under section 91 of the Public
Service Employment Act*. Insubordination during a probation
ary period might well be "cause" for rejection, either of itself or
taken with other matters, just as it might be ground for
disciplinary action even during a probationary period. There
should, however, be no room for doubt, if the matter is handled
as it should be handled, as to which action has been taken. In
this case, while there are references to rejection, I cannot find
fault with the Adjudicator's finding that, on balance, the
4 [I974] 2 F.C. 465.
applicant was really dismissed for insubordination.
* [This is evidently a reference to the Public Service Staff
Relations Act—Ed.]
In my opinion, the factual situation in the Far -
della case (supra) was quite different from the
factual situation in the case at bar. In Fardella
(supra), the facts as found by the adjudicator are
set out on pages 468-472 of the judgment of the
Chief Justice. In my view, the facts in that case
are not clear and unequivocal as they are in the
case at bar. In Fardella (supra), it was far from
clear that the applicant was being "rejected"
rather than being discharged for disciplinary rea
sons. While there was some indication originally
that steps would be taken to reject Fardella on
probation, subsequent events took place which
were more consistent with a disciplinary discharge.
That is not the situation in the case at bar where
the two letters of February 25, 1974 clearly estab
lish rejection during the probation period. I agree
with the Chief Justice as quoted supra, that where,
as in this case, there has been, in fact, a rejection
under section 28 of the Public Service Employ
ment Act, it cannot be classified as a dismissal in
order to create jurisdiction under section 91 of the
Public Service Staff Relations Act. I have no
hesitation in expressing the view that the conduct
complained of in this case is a classic example of
behaviour which would justify rejection of an
employee during a probation period (and this was
conceded by the adjudicator—see Appeal Case,
pages 70 and 73). It might also be ground for
disciplinary action even during a probationary
period. However, on the facts here present, it is
clear that the employer intended to reject and did
in fact reject during probation and was, in my
view, quite entitled so to do. That being so, the
adjudicator was without jurisdiction to consider
the grievance under section 91 and erred in law in
so doing.
Likewise, the Public Service Staff Relations
Board erred indaw in approving of the adjudica
tor's decision.
It is clear from the various reasons for decision
of the adjudicator that he considered the action
here taken by the employer to be disciplinary
action camouflaged as rejection. However, the
facts established before him make it quite clear
that the employer had ample cause for rejection.
There could only be disciplinary action camou
flaged as rejection in a case where no valid or bona
fide grounds existed for rejection. By the adjudica
tor's own admissions, that is not the factual situa
tion in this case.
In considering whether action taken to separate
an employee from his employment that is, in form,
under one authority can be treated as having been
taken under another authority, consideration must
be given to the decision of the Supreme Court of
Canada in Bell Canada v. Office and Professional
Employees' International Unions. In that case,
Bell Canada instituted a unilateral pension plan
under which employees with 20 or more years of
service and who had reached the age of 60 years
"may, at the discretion of the Committee, be
retired from active service (on a service pension)."
One employee was retired from service pursuant to
that plan and he submitted a grievance alleging
that he had been "dismissed" without sufficient
and reasonable cause contrary to the collective
agreement which made no mention of the pension
plan. The collective agreement provided for arbi
tration in the event of "dismissal or suspension for
sufficient and reasonable cause". The majority of
the Supreme Court of Canada agreed with the
position of the employer that since the action
taken by the employer was not "dismissal" but
"retirement", the grievance was not arbitrable. In
delivering the majority judgment of the Court, Mr.
Justice Judson said at page 340:
Article 8 of the collective agreement reading: "The Company
may dismiss or suspend an employee for sufficient and reason
able cause," cannot possibly be read as "dismiss, or suspend, or
retire on pension." Until the words "retire on pension" appear
in article 8 of the collective agreement, there can be no basis
for the arbitrator's decision. Dismissal, suspension and retire
ment on pension are three different and distinct concepts.
The result is that the arbitrator exceeded his powers.
In my opinion, the above rationale applies to the
instant case. For the adjudicator to have jurisdic
tion under section 91(1) (b) on the facts of this
case, it would be necessary for that section to have
included in it, the words: "a rejection for cause
5 [1974] S.C.R. 335.
during the probationary period" or words of like
intent. Without words of that nature, the adjudica
tor is without jurisdiction.
In my view, the whole intent of section 28 is to
give the employer an opportunity to assess an
employee's suitability for a position. If, at any time
during that period, the employer concludes that
the employee is not suitable, then the employer can
reject him without the employee having the adjudi
cation avenue of redress. To hold that a probation
ary employee acquires vested rights to adjudica
tion during his period of probation is to completely
ignore the plain meaning of the words used in
section 28 of the Public Service Employment Act
and section 91 of the Public Service Staff Rela
tions Act. Mr. Jacmain clearly had the right to
grieve under section 90 of the Public Service Staff
Relations Act. His grievance was considered and
rejected. However, not all grievors under section
90 are entitled to adjudication under section 91.
The right to adjudication is restricted to those
grievors bringing themselves within the four cor
ners of section 91(1) which, on the facts here
present, Mr. Jacmain has not been successful in
doing.
Accordingly, the section 28 application is
allowed and the decision of the Public Service
Staff Relations Board dated November 7, 1975 is
set aside.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.