A-141=77
Attorney General of Canada (Applicant)
v.
Michel Grégoire (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, November 24 and 25, 1977.
Judicial review — Public Service — Labour Relations —
Jurisdiction — Application to set aside decision of Adjudica
tor acting under s. 91 of the Public Service Staff Relations Act
— Jurisdiction if grievance resulted in financial penalty —
Pecuniary penalty levied — Application dismissed — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public
Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 91(1)(b).
APPLICATION.
COUNSEL:
P. Delage for applicant.
P. Lesage and N. Beaulieu for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for respondent.
Public Service Staff Relations Board,
Ottawa, for Public Service Staff Relations
Board.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of an Adjudicator purporting
to act under section 91(1)(6) of the Public Service
Staff Relations Act' on the ground that the
respondent's grievance did not fall under that
provision and that the Adjudicator, therefore, did
not have jurisdiction in relation to the matter.
It is common ground that, if the grievance was
in respect of "disciplinary action resulting in . .. a
financial penalty", the Adjudicator had jurisdic
tion and that, otherwise, he did not.
' R.S.C. 1970, c. P-35.
Owing to the paucity of material on which this
section 28 application is based, it is important to
emphasize, at the outset, that, if that material does
not establish that the Adjudicator did not have
jurisdiction, the section 28 application must be
dismissed.
The facts as found by the Adjudicator, although
the verbal evidence on which his findings are
largely based is not before this Court, have not
been challenged. According to them, the respond
ent, a postal clerk, accepted a "fraudulent" cheque
in payment of a Post Office money order without
having referred the "cheque" to a superior officer
as required, in the circumstances, by a "Manual of
Financial Procedure", which requirement had not,
apparently, been brought to his attention. In these
circumstances, he was notified by his Department
that he was required to pay the loss incurred in the
amount of the cheque, which was $150.36. This
requirement was apparently justified before the
Adjudicator on the basis of "requirements set
forth in the bench-mark position description",
although, during the preliminary grievance proce
dures, the respondent was informed by the Depart
ment that the decision was based on paragraph 18
of the "Manual".
It has not been made to appear before us that
the "position description" had any contractual or
other legal status in connection with the respond
ent's legal relationship as an employee or that its
contents were known to him. In so far as the
Manual is concerned, we were not informed as to
how it came into existence (and, in particular,
whether it constituted delegated legislation) and
paragraph 18 does not appear in the record nor
were its contents otherwise made known to us.
One thing is clear. There is no question of the
respondent having failed to account for money or
other securities that came into his possession. Fur
thermore, it does not appear that the levy made on
the respondent was based on a claim for alleged
negligence in the performance of his duties.
Indeed, the facts as found by the Adjudicator
would seem to make it unlikely that there could be
any such claim.
The only conclusion that I can reach in the
circumstances is that a pecuniary penalty has, with
or without legal foundation, been levied on the
respondent for failure to comply with certain of
the requirements contained in a "Manual of
Financial Procedure", which Manual may or may
not have effect as delegated legislation or as proce
dure adopted at some level of departmental
administration. Furthermore, there is nothing to
show that such levy is based on any finding that
the "loss" was attributable to the respondent's
failure to comply with such requirements.
Without attempting to define the limits of what
is "disciplinary action" or what is "a financial
penalty" I am of the view that, on the facts as they
are made to appear by the material before this
Court, it has not been shown that the Adjudicator
was wrong in holding that the respondent's griev
ance falls within section 91(1)(b) of the Public
Service Staff Relations Act.
In my view, the section 28 application should be
dismissed.
* * *
PRATTE J. concurred.
* * *
LE DAIN 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.