A-291-77
The Queen in right of Canada as represented by
the Treasury Board (Applicant)
v.
J. G. I. Lavoie (Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, October 7, 1977.
Judicial review — Public Service — Employee dismissed
"Grievance Form" filed out of time — Public Service Staff
Relations Board permitted extension of filing time — Whether
or not jurisdiction to grant extension when not "employee" at
time of proposed extension — 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, ss. 90(1), 99(1 )(c) — P.S.S.R.B. Regula
tions and Rules of Procedure, SOR/75-604, ss. 8(2), 75(1),(2),
89(1).
Respondent, who had been rejected during his probationary
year, filed a "Grievance Form" after the expiry of the time
permitted by regulation. The Public Service Staff Relations
Board decided to grant respondent's request for an extension of
time to grieve his dismissal. This section 28 application to set
aside that decision is based on the ground that the Board had
no jurisdiction to grant an extension to a person who was not an
"employee" at the time of the proposed extension.
Held, the application is dismissed. The introductory words of
section 90(1) of the Public Service Staff Relations Act must be
read as including any person who feels himself to be aggrieved
as an "employee". Otherwise, a person who, while an
"employee" had a grievance—e.g. in respect of classification or
salary,—would be deprived of the right to grieve by a termina
tion of employment—e.g. by a lay-off. It would take very clear
words to convince the Court that this result could have been
intended.
APPLICATION for judicial review.
COUNSEL:
Duff Friesen for applicant.
M. W. Wright, Q.C., for respondent.
No one appearing for Public Service Staff
Relations Board.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
Public Service Staff Relations Board,
Ottawa, on its own behalf.
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 the Public Service Staff
Relations Board extending the time within which
the respondent may present a grievance under
section 90(1) of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35.
By letter dated October 29, 1975, the respond
ent was advised by an area postmaster that he was
being rejected effective November 6, 1975 "as an
unsatisfactory employee" during his "probationary
period" and was informed that he had the right to
"grieve" that decision in accordance with the
grievance procedure and that any grievance must
be in writing "within 25 days of the receipt of" the
notification.
A "Grievance Form" bearing date December
17, 1975, was signed by the respondent. It set out
the grievance in the following words: "I grieve my
dismissal by Postmaster W. J. Gavan as a Level 4
Employee of the Thunder Bay Post Office". It was
apparently sent to the Postmaster and returned
under cover of a letter saying that it could not be
accepted "as the period for acceptance has
expired". The reference to a "period" was appar
ently a reference to the P.S.S.R.B. Regulations
and Rules of Procedure, SOR/75-604, section 75
of which reads, in part, as follows:
75. (1) Where an employee wishes to present a grievance he
shall do so
(a) at the first level of the grievance process, where the
grievance does not relate to classification or to disciplinary
action resulting in discharge, and
(b) at the final level of the grievance process, where the
grievance relates to classification or to disciplinary action
resulting in discharge,
(2) A grievance shall be presented by an employee
(a) where it does not relate to classification or to disciplinary
action resulting in discharge, not later than the twentieth
day, and
(b) where it relates to classification or to disciplinary action
resulting in discharge, not later than the twenty-fifth day,
after the day on which the employee is notified orally or in
writing, or where he is not so notified, after the day on which
he first has knowledge of any action or circumstance giving rise
to the grievance.'
By letter dated April 16, 1976, addressed to the
Board, the respondent requested enlargement of
time for presenting his "grievance". 2
' See section 90(1) and section 99(1) of the Public Service
Staff Relations Act, which read, in part:
90. (1) Where any employee feels himself to be aggrieved
(a) by the interpretation or application in respect of him of
(i) a provision of a statute, or of a regulation, by-law,
direction or other instrument made or issued by the
employer, dealing with terms and conditions of employ
ment, or
(ii) a provision of a collective agreement or an arbitral
award; or
(b) as a result of any occurrence or matter affecting his
terms and conditions of employment, other than a provi
sion described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is
provided in or under an Act of Parliament, he is entitled,
subject to subsection (2), to present the grievance at each of
the levels, up to and including the final level, in the grievance
process provided for by this Act.
99. (1) The Board may make regulations in relation to the
procedure for the presenting of grievances, including regula
tions respecting
(c) the time within which a grievance may be presented up
to any level in the grievance process including the final
level;
2 While this request refers to Regulation 8, paragraph (2) of
which reads:
8....
(2) The Board may, upon such terms as it thinks advis
able, extend the time prescribed by these Regulations for
doing any act, serving any notice, filing any document or
taking any proceeding and may do so either before or after
the expiration of the time prescribed.
more specific authority would seem to be found in Regulation
89(1), which reads:
89. (1) Notwithstanding anything in this Part, the times
prescribed by this Part for the doing of any act, the presenta
tion of any grievance or the serving or filing of any notice,
reply or document may be extended either before or after the
expiration of those times
After a hearing by the Board of the application
to enlarge the time, counsel for the applicant (the
employer) sent to the Board a summary of the
applicant's representations "on its preliminary
objection" in which its position was summarized as
follows:
5. It necessarily follows that the grievor who admittedly is a
former employee, must establish that he ceased to be employed
in the Public Service because of a disciplinary action resulting
in discharge; if he does not succeed, the Board can not then
exercise its discretion in granting an enlargement of time.
6. The Employer submits that when an objection based on the
status of the grievor is raised, it is incumbent on the grievor to
demonstrate that he possesses the necessary status; in other
words, it is not sufficient for the grievor to allege disciplinary
action. He has at all time the onus of establishing that this is
the case.
7. It is further submitted that in view of the evidence adduced
before the Board to the effect that the grievor was in fact and
in law, rejected for cause during his probationary period as
provided by section 28(3) of the Public Service Employment
Act, the grievor cannot succeed in establishing that he was the
object of a disciplinary action resulting in discharge.
8. In any event, and for the same reasons as above, the grievor
is not now entitled to present a grievance under section 90(1) of
the Act.
This section 28 application to set aside the
decision of the Board extending the respondent's
time to grieve against his "dismissal" is based
upon the contention that the Board had no juris
diction to grant an extension to a person who was
not an "employee" at the time of the proposed
extension. A superficial examination of the docu
ments constituting the case on which this section
28 application is to be decided may well fail to
establish a fairly arguable grievance, 3 which fail
ure might have been a sound reason for a refusal
by the Board to exercise its discretion in favour of
granting an extension. That, however, is not the
basis of this application. The question raised by
this application, and the sole question, is whether
(a) by the Board, in respect of any particular grievance or
class of grievances, upon application of an employer, an
employee or a bargaining agent; or
(b) by agreement of the parties, subject to the approval of
the Board.
3 See the decision of the Supreme Court of Canada in
Jacmain v. Attorney General of Canada (1977) 81 D.L.R.
(3d) 1.
the Board had jurisdiction to grant an extension
having regard to the contention that the applicant
was not an "employee" at the time that the exten
sion was sought as he had been "rejected" prior to
that time.
To get the problem so presented in perspective,
it is expedient to consider first the situation where
a person has been, in terms, discharged as a result
of disciplinary action. 4
The general rule (Regulation 75(2)) is that a
grievance against such a discharge must be pre
sented within 25 days. In my view, such a griev
ance may be presented by a person who, in the
ultimate result turns out to have been lawfully
discharged so as not to have been an "employee"
within the concluding words of the section 2 defi
nition of the word but is an "employee", for
purposes of provisions with respect to disciplinary
action, by virtue of paragraph (b) of the definition
of "grievance". 5 In effect, such a person is an
"employee" for the purpose of presenting a griev
ance under section 90(1) of the Act even though
the ultimate result of the grievance and adjudica
tion procedure is to determine that his status as an
"employee" had already been legally and properly
terminated. If he can grieve within the time fixed,
the time for grievance may, I should have thought,
be extended under Regulation 89(1).
^ Section 91(1)(b) shows that such a case might be a proper
subject for a grievance under section 90(1).
5 The relevant parts of the definitions of "employee" and
"grievance" in section 2 of the Public Service Staff Relations
Act read:
"employee" means a person employed in the Public
Service, ...
and for the purposes of this definition a person does not
cease to be employed in the Public Service ... by reason
only of his discharge contrary to this or any other Act of
Parliament;
"grievance" means a complaint in writing presented in
accordance with this Act by an employee on his own
behalf or on behalf of himself and one or more other
employees, except that
(b) for the purposes of any of the provisions of this Act
respecting grievances with respect to disciplinary action
resulting in discharge or suspension, a reference to an
"employee" includes a former employee ....
Once that simple case is put in perspective, I am
inclined to the view that the answer in this case
follows. Here the applicant wishes to grieve
against "dismissal". Even though that grievance is
based on a purported "rejection", it may turn out
on an examination of the facts that it is a griev
ance with respect to disciplinary action resulting in
discharge. 6 The Board would, therefore, have juris
diction to extend time for such a grievance without
first deciding whether the grievance would
succeed.'
However, I do not choose to express any con
cluded view on that question. I am of opinion that
the section 28 application should be dismissed on a
more general ground. In my view, the introductory
words of section 90(1) of the Public Service Staff
Relations Act must be read as including any
person who feels himself to be aggrieved as an
"employee". Otherwise a person who, while an
"employee" had a grievance—e.g. in respect of
classification or salary—would be deprived of the
right to grieve by a termination of employment—
e.g. by a lay-off. It would take very clear words to
convince me that this result could have been
intended.
6 See the decision of the Supreme Court of Canada in the
Jacmain case (supra).
In my view "dismissal", in this context, is the equivalent of
"discharge", as opposed to rejection, lay-off or release under
sections 28 et seq. of the Public Service Employment Act,
R.S.C. 1970, c. P-32, and refers to one of the penalties express
ly provided for in relation to the standards of discipline contem
plated by section 7(1)(f) of the Financial Administration Act,
R.S.C. 1970, c. F-10, which reads, in part:
7. (1) Subject to the provisions of any enactment respect
ing the powers and functions of a separate employer but
notwithstanding any other provision contained in any enact
ment, the Treasury Board may, in the exercise of its respon
sibilities in relation to personnel management including its
responsibilities in relation to employer and employee rela
tions in the public service, and without limiting the generality
of sections 5 and 6,
(f) establish standards of discipline in the public service
and prescribe the financial and other penalties, including
suspension and discharge, that may be applied for
breaches of discipline or misconduct, and the circum
stances and manner in which and the authority by which
or whom those penalties may be applied or may be varied
or rescinded in whole or in part;
* * *
The following are the reasons for judgment
delivered orally in English by
PRATTE J. I agree with the Chief Justice that
the introductory words of section 90(1) include a
person who feels himself to be aggrieved as an
employee. For that reason, I would dismiss the
application.
* * *
URIE 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.