A-547-77
Dianne Gloin, James Brimbleby, Mernagh Kwia-
toski, Richard Parney and Raymond Stewart
(Applicants)
v.
Attorney General of Canada (Respondent)
and
Public Service Staff Relations Board (Tribunal)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, November 25; Ottawa, December
20, 1977.
Judicial review — Public Service — Jurisdiction — Appli
cants for Post Office positions dismissed on probation —
Dismissals grieved by applicants — Adjudicator under s. 91 of
Public Service Staff Relations Act claimed lack of jurisdiction
to hear grievance — Whether or not Adjudicator had jurisdic
tion to hear the matter — Whether or not sufficient evidence
adduced for Adjudicator to determine issue of jurisdiction —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss.
56(2), 90, 91 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Postal Operations Group (non supervisory) Inter
nal Mail Processing and Complementary Postal Services Col
lective Agreement, Article 29.
Applicants for Post Office positions were notified of their
rejection on probation and of their right to grieve that decision.
When applicants' grievances were referred to adjudication pur
suant to section 91 of the Public Service Staff Relations Act,
the Adjudicator held that she lacked jurisdiction to hear the
matter. That decision forms the subject matter of this section
28 application.
Held, the application is allowed. The Adjudicator's decision
that she had no jurisdiction because the grievors were not
employees at the time of reference to adjudication or at the
time the grievances were filed is in error. The introductory
words of section 90(1) of the Public Service Staff Relations
Act include any person who feels himself to be aggrieved as an
employee. The word "employee" in the introductory words of
section 91(1) must be read in the same manner as that word is
used in the introductory portion of section 90(1), irrespective of
whether he seeks redress under paragraph (a) or (b). It is
established that an adjudicator is entitled to inquire into the
facts to ascertain whether he has jurisdiction under section
91(1)(b) notwithstanding the employer's characterizing its
action as rejection for cause. It logically follows that the same
principle must apply to a grievance with respect to an interpre
tation or application of provisions of a collective agreement.
The Adjudicator did not permit sufficient evidence to be
adduced to make this determination.
R. v. Lavoie [1978] 1 F.C. 778, applied. Jacmain v. The
Attorney General of Canada [1978] 2 S.C.R. 15, applied.
APPLICATION for judicial review.
COUNSEL:
P. Cavalluzzo for applicants.
P. Mclnenly for respondent.
SOLICITORS:
Golden, Levinson, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of G. Gail Brent,
sitting as an Adjudicator pursuant to section 91(1)
of the Public Service Staff Relations Act, R.S.C.
1970, c. P-35, as amended'.
All five applicants were effectively employed by
the Post Office at London, Ontario and placed on
probation for a period of six months. Employment
began on different dates for each of the applicants:
July 12, 1976 for Miss Gloin; August 9, 1976 for
Mrs. Kwiatoski; August 23, 1976 for Mr. Parney;
August 23, 1976 for Mr. Stewart and June 7, 1976
for Mr. Brimbleby. Miss Gloin and Mr. Brimbleby
were employed as Postal Clerks (PO4) and the
three other applicants were employed as Coder/
Sweeper/Sorters (PO4). The three applicants Mrs.
Kwiatoski, Mr. Parney and Mr. Stewart were
advised that in the event they were unable to pass
the mechanization training, they could be rejected
during probation. Miss Gloin and Mr. Brimbleby
were not so advised. All five applicants were
' 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.
informed that they were subject to the benefits and
conditions of the collective agreement between the
Treasury Board and the Canadian Union of Postal
Workers, their bargaining agent, pursuant to the
collective agreement between that Union and the
employer which became effective December 6,
1975.
All of the applicants, except Mr. Parney,
received 80 hours training for their respective jobs
and were then tested. Mr. Parney commenced
employment on August 23, 1976 and voluntarily
withdrew from the training school on September 3,
1976 without completing the required 80 hours of
training. The other four applicants were not able
to meet the required standard for the positions in
question and each one was informed in writing at
various times during August and September of
1976, of his or her rejection on probation to take
effect on specific dates referred to in the individual
letters, which dates varied according to the specific
circumstances of each case. The letter to Mr.
Parney advised him of his rejection on probation
because of his voluntary withdrawal from the
training school before completion of the course. As
/
well, each applicant was informed of his or her
right to g ieve the decision to reject within 25 days
of the re 2 eipt of the notice to reject.
These rejection letters were sent out by the
superintendent or manager of the branch in ques
tion and were said to be sent "Under the au
thority delegated to me by the Deputy Postmaster
General, pursuant to Section 28(3) of the Public
Service Employment Act ...."
The applicants grieved the decisions to reject
them for cause under the procedure provided by
section 90 of the Public Service Staff Relations
Act and their grievances were denied by the
employer. The applicants then referred their griev
ances to adjudication pursuant to section 91 of the
Public Service Staff Relations Act (supra).
At the hearing before the Adjudicator, counsel
for the employer made an objection on the basis
that the Adjudicator lacked jurisdiction. The
Adjudicator upheld the employer's objection to her
jurisdiction and for that reason, rejected the appli
cants' grievances. It is that decision by the
Adjudicator which forms the subject matter of this
section 28 application.
The operative portion of the reasons for decision
given by the Adjudicator appear on pages 6 and 7
of the decision and read as follows:
It is clear that s. 91 refers only to employees and that the
definition of employee which must govern is that contained in s.
1 of the Act. That definition covers only certain people who
have ceased to work. The grievors clearly did not cease to work
as a result of a strike therefore if they are to be considered
employees within the meaning of the Act they must assert that
they were improperly discharged as set out in the definition.
Discharge is not defined in the Public Service Staff Rela
tions Act, but in s. 7(1)(f) of the Financial Administration Act
and in s. 106 of the Public Service Terms and Conditions of
Employment Regulations one finds that the meaning of dis
charge is restricted to the termination of employment "for
breaches of discipline or misconduct". None of the grievors
were discharged, all were rejected for cause, therefore none of
them were employees within the meaning of the Public Service
Staff Relations Act when the references to adjudication were
made in April, 1977. There has been no allegation of discharge
masquerading as some non-disciplinary separation and so no
possibility of asserting jurisdiction under s. 91 as had been done
in all the cases cited to me by counsel such as Lee (166-2-2637)
and Dancey (166-2-2371).
Further, I would agree that since there is no jurisdiction to
deal with the matter because the grievors were not employees at
the time of the reference to adjudication, and in the absence of
any allegation that the grievors were in fact discharged, no
evidence beyond the rejection for cause during the probationary
period can be admitted to ascertain my jurisdiction.
In the alternative, I would agree with counsel for the employ
er that Article 29 of the collective agreement can not alter or
amend any term or condition of employment established by the
Public Service Employment Act. If that Article of the collec
tive agreement were given the meaning which counsel for the
grievors tried to press upon me, then it would mean that no
probationary post office employee could be rejected for failure
to learn how to perform up to the standards of the new
mechanical operations. This would mean that failure to meet
those standards would not be cause for rejection but rather
cause for transfer to another job, or succession of jobs, until the
probationary employee either mastered the tasks brought about
by technological change, or had proven himself to be unable to
perform a "pre-technological change" job. This would rob s. 28
of the Public Service Employment Act of all practical meaning
since it would guarantee probationary employees an automatic
appointment to another position upon rejection in the position
for which they were hired.
Therefore for the reasons stated above, I find that I have no
jurisdiction under the Public Service Staff Relations Act to
hear this matter because the grievors were not employees at the
time of the reference to adjudication or at the time the griev
ances were filed.
In concluding as she did, that she had no juris
diction because the grievors were not employees at
the time of the reference to adjudication or at the
time the grievances were filed, the Adjudicator's
decision is contrary to a recent decision of this
Court in the case of The Queen v. Lavoie 2 where it
was held that the introductory words of section
90(1) of the Public Service Staff Relations Acta
include any person who feels himself to be
aggrieved as an employee. Counsel for the
respondent attempted to distinguish the Lavoie
case on the basis that its application was limited to
the case of an employee seeking to show that a
rejection was really a disciplinary discharge under
section 91(1) (b) and did not apply to a person
seeking redress under section 91(1) (a), as here. In
my view there is no merit in this submission and
the word "employee" as used in the introductory
words of section 91(1) must also, of necessity, be
read in the same manner as that word is used in
the introductory portion of section 90(1) and
includes any person who feels himself aggrieved as
an employee irrespective of whether he seeks
redress under paragraph (a) or (b) of section
91(1). Read in this fashion, the applicants in the
case at bar are clearly included in the definition of
employee as contained in sections 90(1) and 91(1).
The Adjudicator erred, then, in finding that the
applicants were not employees.
2 [1978] 1 F.C. 778.
3 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 provision
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.
If this were the only reason upon which the
Adjudicator declined jurisdiction the section 28
application would have to be granted because
clearly the error to which reference has just been
made is an error in law. However, it seems to me
that, in the alternative, she may have, in effect,
held that even if she was wrong in concluding that
she had no jurisdiction because the applicants were
no longer employees, she was entitled to decide
whether or not she had jurisdiction, under section
91(1) (a), because it was necessary for her to inter
pret or apply the provisions of a collective agree
ment, and that, on that question, she could not
adopt the interpretation of Article 29 of the collec
tive agreement urged upon her by the applicants'
counsel. In her view, Article 29 cannot alter or
amend any term or condition of employment
established by the Public Service Employment
Act, R.S.C. 1970, c. P-32, a result which would be
prohibited by section 56(2) of the Public Service
Staff Relations Act 4 . Assuming therefore, that the
Adjudicator disposed of the appeals on that basis
(an assumption which is not made without some
doubt in view of the last paragraph of her
decision 5 ), it becomes necessary to determine
whether or not the alternative disposition of the
appeals is sustainable.
The relevant clauses of the collective agreement
which was in force at the times of the respective
appointments of the applicants, and to which each
was made subject by the terms of their letters of
appointment, are as follows:
29.01 Definitions
In this Article, "technological changes" means the introduc
tion by the Post Office Department in the internal processing of
^56....
(2) No collective agreement shall provide, directly or in
directly, for the alteration or elimination of any existing term
or condition of employment or the establishment of any new
term or condition of employment,
(a) the alteration or elimination of which or the establish
ment of which, as the case may be, would require or have the
effect of requiring the enactment or amendment of any
legislation by Parliament, except for the purpose of appro
priating moneys required for its implementation, or
(b) that has been or may be, as the case may be, established
pursuant to any Act specified in Schedule III.
5 "Therefore for the reasons stated above, I find that I have
no jurisdiction under the Public Service Staff Relations Act to
hear this matter because the grievors were not employees at the
time of the reference to adjudication or at the time the griev
ances were filed."
mail, of equipment different in nature, type or quantity from
that previously utilized by the Post Office Department, a
change, related to the introduction of this equipment, in the
manner in which the Post Office Department carries on the
internal processing of mail and any change in work methods
and postal services operations affecting one or more employees.
29.02 Adverse Effects to be Eliminated
In carrying out technological changes, the Employer agrees
to eliminate all injustices to or adverse effects on employees
and any denial of their contractual or legal rights which might
result from such changes.
29.03 Notice
When the Employer is considering the introduction into any
sector of the Canadian postal system of a technological change:
(a) the Employer agrees to notify the Union as far as
possible in advance of his intention and to update the infor
mation provided as new developments arise and modifica
tions are made;
(b) the foregoing notwithstanding, the Employer shall pro
vide the Union, at least ninety (90) days before the introduc
tion of a technological change, with a detailed description of
the project it intends to carry out, disclosing all forseeable
effects and repercussions on employees.
It was the contention of applicants' counsel that
this Article is applicable to all employees subject
to the collective agreement irrespective of whether
they are permanent or probationary employees.
Moreover, he said, since technological changes had
occurred and, in fact, were continuing after the
employment of his clients, they were entitled to the
protection of that Article. Furthermore, it was, in
his view, impossible for the Adjudicator to have
determined whether or not section 91(1)(a) of the
Public Service Staff Relations Act, conferred
jurisdiction upon her on the basis that the interpre
tation of a collective agreement was involved with
out permitting the applicants to adduce relevant
evidence for that purpose. The Adjudicator had, he
said, refused to permit such evidence to be called
and she had, thus, erred in law or had declined
jurisdiction.
Counsel for the respondent, on the other hand,
said there had been sufficient evidence adduced or
agreed upon, to enable the Adjudicator to make a
decision. He pointed out that in the material filed
were the letters of appointment of each of the
applicants, the letters of rejection sent to each as
well as the grievances, and the employees' replies
thereto. In addition he referred to the decision of
the Adjudicator where at pages 4 and 5 she made
reference to what, in counsel's submission,
amounted to an agreed statement of facts. The
passage to which he referred is as follows:
Counsel for the Union then outlined for me the evidence
which he wished to adduce. The evidence was that the London
Post Office began mechanization in late 1975 or early 1976,
that the tests the grievors took were designed for employees to
see if they could operate the new machines and the tests were
initiated in London in March, 1976, that the grievors took the
test and were all unable to meet the required standard. He also
asked me to take notice of the facts concerning technological
change in the London Post Office dealt with by the Chief
Adjudicator in 169-2-81 and 169-2-83.
Counsel for the employer agreed that, if I could hear any
evidence beyond that which he asserted I could hear, the facts
as outlined above were accurate. He requested though that I
record clearly that he was at no time abandoning his original
position as to the inadmissibility of such evidence.
Applicants' counsel disagreed with the submis
sion that there was sufficient evidence adduced to
enable the Adjudicator to determine whether or
not she had jurisdiction under section 91(1)(a) to
hear the appeal and asserted that there was much
additional evidence needed for her to make such a
determination. When pressed by the Court to indi
cate the nature of the evidence that would have
been adduced beyond that already referred to, he
was able only to refer to certain essential differ
ences in the letters of engagement of two of the
five applicants, the lack of information as to the
dates of introduction of the new equipment at the
London Post Office and whether or not the Chief
Adjudicator's decision concerning technological
changes at London was, in fact, before her.
These omissions, or at least the lack of certainty
that the evidence was before her, leaves me with
considerable doubt as to whether the Adjudicator
had before her sufficient "jurisdictional facts" to
enable her to make a proper determination of her
jurisdiction under section 91(1) (a). There is no
question that the decision of the Supreme Court of
Canada in Jracmain v. The Attorney General of
Canada [1978] 2 S.C.R. 15, establishes that an
adjudicator is entitled to inquire into the facts to
ascertain whether he has jurisdiction under section
91(1)(b) notwithstanding the fact that the employ
er has characterized its action as a rejection for
cause. I am of the opinion that it logically follows
that the same principle must apply when it is
alleged that the grievance is with respect to
the interpretation or application in respect of him of a provision
of a collective agreement....
under section 91(1) (a).
As I read the record before us the Adjudicator
did not permit sufficient evidence to be adduced
before her to make this determination. In my view,
not only the deficiencies referred to by applicants'
counsel exist, but reference to other clauses of
Article 29 indicate the kinds of evidence which are
material to her decision on jurisdiction and upon
which apparently no evidence was given.
For example, clauses 29.03 and 29.04 require
that notice in writing be given by the employer to
the union at least 90 days in advance before
technological changes be introduced. The notice,
inter alia, must specify the nature of the change,
the date upon which it is proposed that the
changes be effected, and, most importantly, under
clause 29.04(c) "the approximate number, type
and location of the employees likely to be affected
by the change." The parties to the agreement, in
the whole context of Article 29, are entitled to
know the problem areas and who will be affected
by the proposed changes before they are, in fact,
made, as well, of course, the dates the changes are
to be implemented. This information, it seems to
me, is of vital importance for the Adjudicator to
determine whether or not Article 29 applies to the
applicants. So far as the record discloses, by refus
ing to permit evidence to be adduced other than
that to which I have previously referred, at least
some of the facts upon which she could determine
whether or not she had jurisdiction were not before
her. Her assumption of jurisdiction on the alterna
tive basis, under section 91(1)(a), therefore, seems
to lack evidentiary support.
Accordingly, for all of the above reasons, which
are, of course, confined to the particular circum
stances surrounding the conduct of the adjudica
tion in issue, it is my opinion that the section 28
application should be granted, the decision of the
Adjudicator should be set aside and the matter
should be remitted to the Adjudicator for the
purpose of determining, on proper evidence,
whether or not she had jurisdiction to hear the
appeals of the applicants from the disposition of
their grievances, and on the basis of such determi
nation, the proper disposition of the appeals.
* * *
HEALD J.: I concur.
* * *
MACKAY D.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.