A-120-77
Gilles Richard (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, December 1 and 13, 1977.
Judicial review — Public Service — Applicant dismissed
during probation — Employer classified dismissal as rejection
during probation, pursuant to s. 28(3) of Public Service
Employment Act, rather than discharge for disciplinary rea
sons — Respondent objected to Adjudicator's jurisdiction
(derived from s. 91 of Public Service Staff Relations Act) —
Appeal from Adjudicator's decision to uphold objection —
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 28(3)
— Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
91 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant, during a one-year extension of his probationary
period, was rejected for cause. On adjudication, respondent
objected to the Adjudicator's exercising jurisdiction pursuant to
section 91 of the Public Service Staff Relations Act on ground
that the employer had classified the dismissal as rejection
during probationary period pursuant to section 28(3) of the
Public Service Employment Act, rather than discharge for
disciplinary reasons. Applicant seeks to have the Adjudicator's
decision upholding this objection reviewed and set aside.
Held, the application is allowed. An adjudicator fails to
exercise his jurisdiction if he does not first inquire into the
genuine nature of an employer's rejecting a probationary
employee and is not bound by the employer's characterization
of his own actions. As the adjudicator must consider the facts
objectively, he must have sufficient evidence adduced to decide
whether the purported rejection on probation was in fact disci
plinary action within the meaning of section 91(1)(b), accord
ingly conferring jurisdiction. The exhibits, singly or together,
cannot be considered decisive or sufficient to determine this
jurisdictional question. The Adjudicator's misunderstanding of
the jurisprudence has resulted in his failure to hear the evidence
needed to decide that question. His decision to dismiss the
grievance for want of jurisdiction, however, is a decision within
the meaning of section 28 and does not deprive this Court of
jurisdiction to deal with it.
Attorney General of Canada v. Public Service Staff Rela
tions Board [Jacmain case] [1977] 1 F.C. 91, applied.
Fardella v. The Queen [1974] 2 F.C. 465, applied.
APPLICATION for judicial review.
COUNSEL:
M. W. Wright, Q.C., for applicant.
No one appearing for respondent.
P. B. Annis for Attorney General of Canada.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for applicant.
Public Service Staff Relations Board,
Ottawa, for respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: The applicant entered the Public
Service of Canada on June 2, 1975. On that day he
was appointed as a teacher of French as a second
language in the classification LAT-01 with the
Staff Development Branch of the Public Service
Commission. The applicant's probationary period
was initially established as one year. By letter
dated April 30, 1976 (Exhibit E-2, Case Book,
page 9) the Director-General of the said Staff
Development Branch informed the applicant that,
pursuant to section 30(2) of the Public Service
Employment Regulations SOR/67-129 he was
extending applicant's probationary period for one
year, effective June 2, 1976. In that letter, the
Director-General expressed the hope that the
extension would enable the applicant to improve
himself from the point of view of his ability to
establish and maintain adequate personal relations
with his colleagues, the senior teachers and his
unit head'.
By letter dated September 20, 1976 (Exhibit
E-1, Case Book, page 8) the said Director-General
notified the applicant that, pursuant to section
28(3) of the Public Service Employment Act,
R.S.C. 1970, c. P-32, he was rejecting him while
on probation with the result that the applicant's
employment would terminate on October 22, 1976.
' Counsel for the Attorney General paraphrased the letter as
expressing "... the hope that the extension would enable the
applicant to improve his attitude toward his colleagues, the
senior teachers and his unit head."
With respect, I do not so translate the passage referred to.
In that letter, the Director-General further stated
that the applicant's behaviour had been at vari
ance with the position of a professor and of an
employee in the employment of the Public Service
Commission and that there had been a lack of
goodwill and of co-operation on the part of the
applicant notwithstanding the advice and warnings
given to him.
The applicant filed a grievance and when his
grievance was rejected by the employer, he pre
sented his grievance for adjudication under section
91 of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35. The employer objected to the
jurisdiction of an adjudicator to hear the grievance
under said section 91. The Adjudicator upheld the
employer's objection and concluded his reasons
therefor with the following passage:
In the case before me, the employer classified Mr. Richard's
termination of employment as a rejection during the probation
ary period by having recourse to the procedure governing
rejection for cause during the probationary period provided for
in subsection 28(3) of the Public Service Employment Act
instead of the procedure governing discharge for disciplinary
reasons. The Adjudicator, therefore, does not have jurisdiction
to decide the validity of the termination of employment pursu
ant to section 91 of the Public Service Staff Relations Act,
even though Mr. Richard's rejection was prompted by miscon
duct on his part.
The only evidence before the Adjudicator was
the documentary evidence referred to supra,
namely Exhibits E-1 and E-2. No oral evidence
was adduced.
It is clear from the passage quoted supra and
from other statements in the Adjudicator's
reasons 2 that, in the view of the Adjudicator, once
the employer has characterized the action taken as
"rejection on probation" that determination is
final and binding and deprives the Adjudicator of
jurisdiction to even consider whether or not the
employer's action was "disciplinary action" within
the meaning of section 91(1) (b) of the Public
Service Staff Relations Act. The Adjudicator
appears to have based that opinion on his percep
tion of what this Court decided in the case of
Attorney General of Canada v. Public Service
Staff Relations Board'.
2 See for example the second full paragraph on page 6 of
those reasons.
3 [19771 1 F.C. 91—hereafter referred to as the Jacmain
case.
With respect, it seems to me that the Adjudica
tor in this case has misconceived or misinterpreted
what this Court decided in the Jacmain case
(supra). In that case, the Court relying on this
Court's decision in the Cutter Laboratories case 4 ,
held that an adjudicator was entitled to inquire
into the facts and circumstances of a particular
case sufficiently to enable that adjudicator to
determine whether, in fact, the employer's action
was a rejection for cause or a disciplinary
discharge 5 .
I agree with applicant's counsel in his submis
sion that the Jacmain case (supra) and the Far -
della case 6 establish that an adjudicator fails to
exercise his jurisdiction if he does not first inquire
into the genuine nature of the employer's action in
purporting to reject a probationary employee and
that the adjudicator is not bound by the employer's
characterization of his own actions. In the circum
stances of this case, I believe that it was incumbent
on the Adjudicator to consider the facts objectively
and in order to do this, it was necessary for him to
have sufficient evidence adduced to enable him to
answer the question as to whether the purported
rejection on probation was in fact disciplinary
action within the meaning of section 91(1)(b) so as
to clothe him with jurisdiction under that
subsection.
All the Adjudicator had before him by way of
"jurisdictional facts" were Exhibits E-1 and E-2.
In my view, neither of these documents, whether
taken singly or together can be considered decisive
or sufficient to enable the Adjudicator to deter
mine the jurisdictional question. The Adjudicator
has clearly erred in his appreciation and under
standing of the relevant jurisprudence and this
error in law has resulted in his failure to hear the
evidence of jurisdictional facts which he needed to
° Cutter Laboratories International v. Anti-Dumping Tri
bunal [1976] 1 F.C. 446.
5 See the Jacmain judgment in this Court [1977] 1 F.C. 91
at page 96. The judgment of this Court in the Jacmain case
was affirmed by the Supreme Court of Canada [1978] 2 S.C.R.
15. All three judgments in the Supreme Court of Canada
appear to uphold the finding of this Court on this particular
issue. See judgment of de Grandpré J. (pages 37-38); the
judgment of Pigeon J. (page 40) and the judgment of Dickson
J. (pages 20-21, 24-25).
6 Fardella v. The Queen [1974] 2 F.C. 465 (Court of
Appeal).
have before him when he decided the question of
jurisdiction.
For the above reasons, I have the view that, on
the main issue between the parties, this section 28
application must succeed. It is necessary, however,
to deal with an alternative submission made by
counsel for the respondent. This submission was to
the effect that since the Adjudicator decided to
dismiss the grievance for want of jurisdiction, such
action on his part was not a decision or order
within the meaning of section 28 of the Federal
Court Act, thereby depriving this Court of juris
diction to deal with the matter. Counsel submitted
that the decision of the Adjudicator was not one
made by him in the exercise of his jurisdiction or
powers to make decisions but was merely taking a
position which had no statutory effect and that the
proper remedy, if any, was an order of mandamus
in the Trial Division. In support of these submis
sions, counsel relied on the Juneau case', the
Cylien case 8 , the Danmor Shoe case 9 and the
Gaspar case 10 .
In my opinion, this submission is without merit
because, on the facts here present, the Adjudicator
did purport to render a decision by dismissing the
grievance as he is authorized to do under section
96(1) and (2) of the Public Service Staff Rela
tions Act". The Adjudicator's final sentence in his
"decision" reads as follows:
FOR THE ABOVE REASONS, the Adjudicator dismisses the
grievance for lack of jurisdiction. ' 2
' National Indian Brotherhood v. Juneau [1971] F.C. 73.
8 The Attorney General of Canada v. Cylien [1973] F.C.
1166.
9 I re Anti-Dumping Act and in re Danmor Shoe Co. Ltd.
[1974] 1 F.C. 22.
10 Gaspar v. Public Service Commission and Irene G. Clap-
ham, Court file no. A-608-75.
" 96. (1) Where a grievance is referred to adjudication, the
adjudicator shall give both parties to the grievance an opportu
nity of being heard.
(2) After considering the grievance, the adjudicator shall
render a decision thereon and
(a) send a copy thereof to each party and his or its repre
sentative, and to the bargaining agent, if any, for the bar
gaining unit to which the employee whose grievance it is
belongs; and
(b) deposit a copy of the decision with the Secretary of the
Board.
12 See page 11 of decision.
This sentence follows some 10 1 / 2 pages of reasons
in the course of which he refers to Exhibits E-1
and E-2 on several occasions. In my opinion, what
really happened in this case is that even though he
stated that the grievance was dismissed for lack of
jurisdiction, in fact he assumed jurisdiction to the
point of accepting some documentary evidence but
refused to hear or consider such other necessary
evidence as was essential to a proper determination
of the question.
In my opinion, the following statement by the
Chief Justice at page 28 of the Danmor Shoe case
(supra) covers the situation in the case at bar:
A decision in the purported exercise of the "jurisdiction or
powers" expressly conferred by the statute is equally clearly
within the ambit of section 28(1). Such a decision has the legal
effect of settling the matter or it purports to have such legal
effect. Once a tribunal has exercised its "jurisdiction or pow
ers" in a particular case by a "decision" the matter is decided
even against the tribunal itself*.
*Unless, of course, it has express or implied powers to undo
what it has done, which would be an additional jurisdiction.
The decision by the Adjudicator in this case was
purportedly in exercise of the power given to him
by section 96(1) and (2) (supra), and it purports
to settle the matter. This is not the case of a
decision on a preliminary, interlocutory or ancil
lary matter as was the situation in each of the
cases referred to by respondent's counsel.
A perusal of section 96 and section 20(1)(c) of
the Public Service Staff Relations Act make it
clear that the decision of an adjudicator under
section 96 is final and binding on the parties. As
such a decision, it is clearly subject to review
under section 28 of the Federal Court Act.
Accordingly, for all of the above reasons, I
would grant the section 28 application, set aside
the decision of the Adjudicator, Pierre-André
Lachapelle dated January 31, 1977 and refer the
matter back to the Adjudicator for the purpose of
determining, on proper and sufficient evidence,
whether he has jurisdiction to hear the applicant's
grievance under section 91(1)(b) of the Public
Service Staff Relations Act and on the basis of
that determination, to deal with and dispose of the
grievance pursuant to the relevant provisions of the
Public Service Staff Relations Act.
URIE J.: I agree.
RYAN J.: I concur.
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.