A-457-82
Neil A. Fraser (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Thurlow C.J., Pratte and Ryan
JJ.—Ottawa, October 19; November 23, 1982.
Judicial review — Applications to review — Public Service
— Right of public servant to criticize Government policies —
Application to review and set aside Adjudicator's decision
rejecting grievances following employer's decision to suspend
and then dismiss public servant for alleged misconduct in
criticizing Government policies — Applicant found to have
criticized Prime Minister and Government policies unrelated to
his work and decision to discipline him — Adjudicator ruling
that public servant may criticize Government policy publicly
but holding that applicant had impaired usefulness as public
servant — Court of Appeal dismissed s. 28 application, reject
ing submissions that public servant enjoys freedom of speech
to criticize Government policies unrelated to his work, and that
Adjudicator erred in making findings of facts without regard
to material and that direction that applicant refrain from
public criticism was illegal — 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. 2, 91, 96 — Public Service Employ
ment Act, R.S.C. 1970, c. P-32, s. 32 — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b)
— Canadian Bill of Rights, S.C. 1960, c. 44 1R.S.C. 1970,
Appendix 1111 — Public Service Terms and Conditions of
Employment Regulations, SOR/67-118, s. 106.
The applicant was employed in the Public Service of Canada.
He publicly criticized Government policies, unrelated to his
work with the Department of National Revenue, and was
suspended and directed to refrain from making any public
statements critical of Government. The applicant challenged
the direction, renewed his criticisms of the Prime Minister and
the Government and asserted that the Government had no right
to curtail his freedom of speech. Following a second suspension
and direction to refrain from criticizing the Government, he
multiplied his public interventions against the Prime Minister
and the Government; his employment was terminated for
misconduct.
An Adjudicator, acting pursuant to section 91 of the Public
Service Staff Relations Act, ruled that a public employee may
criticize Government policy publicly, exercising reasonable
restraint. The first suspension was thus set aside. However, the
subsequent suspension and dismissal were upheld as the appli
cant had engaged in a public campaign against the Prime
Minister and some Government policies that resulted in behavi-
our that in effect impaired his usefulness as a civil servant,
resulting in misconduct warranting dismissal. A section 28
application was directed against the decision. The applicant
submitted that: a civil servant, in the exercise of his freedom of
speech, is entirely free to criticize the Government and its
policies provided that those policies are unrelated to his work or
to the functions of the department in which he is employed;
and, that there was no evidence before the Adjudicator con
cerning the "public perception" of the applicant's behaviour;
lastly, that the Adjudicator erred in failing to consider that the
direction not to persist in criticizing the Government was
illegal.
Held, the application is dismissed. The Adjudicator made no
error in law in addressing the question legally before him:
whether the applicant's conduct was misconduct. He did not
fail to make a careful assessment of the nature and duties of
the employee's position and the effect of the impeached conduct
on the employee's ability to perform his duties. Hence, the
Court of Appeal concluded that the Adjudicator's decision
could be reasonably supported. The Adjudicator's ruling that a
civil servant may criticize Government policy publicly, exercis
ing reasonable restraint, was not objected to.
Per Thurlow C.J.: It is not a case on civil rights, their
limitation or extent: freedom of speech is not in issue. The
Adjudicator's function was to decide the question lawfully
before him: whether the conduct of the applicant was such as to
impair the employment relationship and to detract from useful
ness to employer. On the facts, the Adjudicator found that the
conduct had exceeded permissible limits and impaired useful
ness as a public servant. That is a question of fact as is the
appropriate disciplinary action. The material supports the
Adjudicator's findings. If there is a recognized distinction
between criticizing Government qua government and Govern
ment qua employer, it is but one of the aspects of conduct
which the Adjudicator might find useful to consider. No ques
tion of law is to be found in such a distinction and on the facts,
no such distinction could be maintained for the applicant
criticized in a defiant manner his employer's conduct in disci
plining him.
Per Pratte J.: A civil servant can impair his usefulness by
criticizing Government policies not related to his Department,
and whether behaviour is such to constitute misconduct and
justify suspension or dismissal is a question of fact for the
Adjudicator. It is not necessary to adduce evidence of impair
ment before the Adjudicator to allow him to make a finding of
misconduct: it is sufficient that there be evidence of behaviour
which, in the Adjudicator's opinion, is such as to impair the
usefulness of the civil servant. Even if the supervisor's direction
enjoining the applicant to refrain from making any further
public statements critical of Government was couched in too
broad language, that would not excuse applicant's behaviour.
Per Ryan J.: It is undisputed that the duties and responsibili
ties of a public servant may be such as to place limits on
criticism to the extent it would impair his capacity as an
employee to perform or observe them. There is a grey area
between public criticism of policy that would clearly impair a
public servant's usefulness in his position and that which would
not. The Adjudicator considered the whole of the conduct and
applied his mind to this grey area and in so doing did not err.
Though the direction not to continue public criticism may have
been too broad, it is not enough to justify the applicant's
reaction to it which, in itself, was misconduct.
CASES JUDICIALLY CONSIDERED
APPLIED:
Stewart v. Public Service Staff Relations Board, [19781
1 F.C. 133 (C.A.).
REFERRED TO:
Reference re Alberta Statutes, [19381 S.C.R. 100.
COUNSEL:
Maurice W. Wright, Q.C. and Andrew J.
Raven for applicant.
No one appearing for respondent.
Graham R. Garton for Attorney General of
Canada.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Legal Services, Public Service Staff Rela
tions 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
THURLOW C.J.: I agree that the application
should be dismissed for the reasons given by Mr.
Justice Pratte. There are, however, some further
comments that I wish to add.
As I view it, this is not a case on civil rights,
their limitations or their extent. The applicant's
undoubted right to freedom of speech, whether
arising at common law, under the Canadian Bill of
Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix
III], or under the Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), is not, and never has been, at stake in
these proceedings. What was in issue before the
Public Service Staff Relations Board was whether
the applicant's conduct in publicly criticizing and
denouncing policies of the Government of Canada
and its conduct of public affairs was compatible
with his relationship with his employer and
impaired his usefulness as a federal public servant
and thus justified the disciplinary action taken
against him.
What is before this Court is whether the Board's
decision is based on an error of law or is not
supportable in law on the evidence that was before
the Board. It is not the function of this Court to
retry the matter. To do so does not lie within the
authority of this Court in a proceeding of this
kind.
When a person undertakes employment he
necessarily foregoes, to the extent required by the
employment, rights or freedoms which he other
wise might exercise and enjoy. By taking the
employment he foregoes his freedom to do other
things that he might prefer to do during the work
period. He foregoes the same right, as well, to the
extent that may be necessary for him to keep
himself fit to do his job satisfactorily. He has
undoubted freedom to stay up all night but he may
have to forego it to the extent necessary for him to
be fit for his work the next day. If he does not do
so and his work suffers he may have to face
disciplinary action by his employer. By the same
token, when taking employment, a person foregoes
his freedom of speech to the extent that may be
necessary to do his job without impairing his use
fulness to his employer.
If at some point an employee becomes disen
chanted and is no longer content to forego his
fundamental rights and freedoms to the extent
called for by his employment he can, of course,
assert and exercise them. But when his so doing is
incompatible with the employment and detracts
from his usefulness to his employer his choice is to
leave the employment or suffer the disciplinary
measures that he incurs.
Whether conduct in respect of which an
employee is disciplined destroys or detracts from
the employee's usefulness to the employer is not a
question of law. Nor is the question whether disci
plinary action awarded by the employer is appro
priate a question of law. Both are questions of fact
which under the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, are committed to the
Board for decision. Neither that Act nor the Fed
eral Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
commits them to this Court for decision.
It is clear on the facts of this case that a wide
difference existed between the view of the employ
er as to the appropriate conduct for a public
servant, as expressed on two occasions in the direc
tion to the applicant "to refrain from any further
public statements that criticize a government
department or agency, its officials or its rules and
regulations", on the one hand, and the view of the
applicant that apart from criticism related to the
Government Department in which he served, he
should be free to publicly criticize the Govern
ment, its policies and its conduct of public affairs.
It is apparent that the Adjudicator regarded both
positions as extreme and that he did not adopt or
agree with either of them. It was his function to
decide whether the applicant's conduct had been
such as to impair the employment relationship and
to detract from his usefulness to his employer and
that, in my view, is the question which he did
address and decide. In doing so, it was not neces
sary for him to do any more than he did in
explaining the standards by which he would be
guided and the reasons for his conclusion that on
the facts the conduct of the applicant had exceed
ed permissible limits and impaired his usefulness
as a public employee.
Counsel for the applicant stressed a distinction
which he said existed between public criticism
levelled by a public servant against the Govern
ment of Canada qua government of the country
and criticism that might be regarded as levelled
against the Government of Canada qua his
employer. As I understood the argument, counsel
sought to persuade the Court that the applicant's
conduct should be regarded as being of the former
type and not as criticism of his employer as such.
He reasoned from this that the applicant's conduct
should have had no effect on the harmonious
employee-employer relationship or on his useful
ness to his employer in the position he held. In my
view, even if such a distinction is recognized it is
but one of the aspects of conduct which an
adjudicator might find useful to consider in reach-
ing his conclusion as to the effect the conduct in
question had on the employee-employer relation
ship and as to whether the conduct was calculated
to or did detract from the employee's usefulness as
an employee. In my opinion, no question of law is
involved in or raised by the distinction.
It is also apparent on the facts that the distinc
tion could not be maintained. Paragraph 15 of the
decision discloses that the applicant in his public
address on February 1, 1982 criticized in a defiant
manner his employer's conduct in disciplining him
for what had occurred earlier. The decision also
shows that his relationship with his employer was
publicly discussed by him on one or more of the
radio programs in which he participated. The
exhibits as well are replete with indications that
the applicant discussed publicly the situation be
tween him and his employer resulting from his
criticisms. That the Adjudicator took all this into
account appears at the end of paragraph 52 of the
decision:
As the evidence demonstrated, it was not Mr. Fraser's com
ments on metric conversion that gave him his "platform" but it
was his defiance of the restrictions imposed upon him as a
public servant that attracted the media attention.
In my view, the Adjudicator correctly appreciat
ed his task, his conclusions are supportable on the
material that was before him and his decision is
not based on any error of law.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act to review and set
aside a decision of an Adjudicator under the
Public Service Staff Relations Act. That decision
disposed of three grievances presented by the
applicant in respect of disciplinary sanctions
(including his discharge) imposed against him by
his employer, Her Majesty the Queen.
The applicant was employed in the Public Ser
vice of Canada. He worked in the Kingston Dis
trict Office of the Department of National Reve
nue where he occupied the position of Group Head
of the Business Audit Division. The function of
that Division is to "audit the financial statements
of large corporations and like undertakings to
determine whether an appropriate amount in taxes
has been paid."' The applicant "was particularly
charged with the responsibility of selecting those
corporations for audit and of making the audit
assignments to employees under his supervision."
Prior to his discharge, he had "worked for Reve
nue Canada for ten years" and "performed the
functions of Group Head for .. . five years." His
work performance had always been satisfactory;
until the events which gave rise to these proceed
ings, his employer had never had any occasion to
discipline him. Those events are related in detail in
the decision under attack; for the purposes of these
reasons, they need only be briefly summarized.
On January 18, 1982, the newspaper The Whig-
Standard (Kingston) published in its "Letters to
the Editor" column a letter signed by the applicant
criticizing the Government's policy on metric con
version. A few days later, on January 25, the
applicant attended, with a protest group against
metric conversion, a meeting of the Kingston City
Council where a motion opposing the Govern
ment's policy on metric conversion was to be dis
cussed. On the following day, The Whig-Standard
(Kingston) published an account of that meeting
which made reference to Mr. Fraser as an
employee of Revenue Canada; the article was
accompanied by a photograph of the applicant
holding a placard on which was written a slogan
against metric conversion.
Those events were brought to the attention of a
Mr. Lowe, the applicant's supervisor, who, after
consulting with his superiors, formed the view that,
in making public statements against a Government
policy and a Government agency, the applicant
had been guilty of misconduct warranting discipli
nary action. He, therefore, suspended the appli
cant for a period of three days and directed him to
refrain from making any public statements criti-
' The unidentified quotes in these reasons are from the
decision of the Adjudicator.
cizing a Government department or agency, its
officials, or its rules and regulations.
The applicant was greatly disturbed by the
direction restraining him from criticizing the Gov
ernment in public. He decided to challenge that
direction and air his grievance in public.
On February 1, 1982, the applicant made an
address at a meeting of the Kingston City Council
in which, after asserting that the Government had
no right to curtail his freedom of speech, he criti
cized the manner in which the Prime Minister and
his Government were governing the country. More
particularly, he aimed his criticisms at the metric
conversion program and the Charter of Rights
contained in the then proposed Constitutional Act.
Much publicity was given to that address in the
press and other media. The applicant "cultivated
this media attention by granting interviews" and
appearing on open-line radio shows, taking advan
tage of those occasions to air his grievance and
criticize the Prime Minister and the Government.
Again, those events came to the attention of Mr.
Lowe who found that the applicant had, for a
second time, been guilty of misconduct warranting
disciplinary action. He suspended him for ten days
and directed him again to refrain from making any
public statements criticizing a Government depart
ment or agency, its officials, or its rules and
regulations.
That second suspension did not prompt the
applicant to alter his attitude. On the contrary, he
multiplied his public interventions against the
Prime Minister, the Government, and the proposed
Charter of Rights. As a result, Mr. Lowe wrote
him on February 22, 1982, that his employment
with the Public Service was terminated effective
February 23, 1982.
The applicant presented grievances against his
two suspensions and his discharge. Those griev
ances were referred to adjudication and were the
subject of the decision against which this section
28 application is directed.
The Adjudicator found that the applicant's
grievance against his first suspension was well
founded. In his view, in sending a letter to the
Editor of The Whig-Standard (Kingston) criticiz
ing the Government's metric conversion policy and
in participating in a public demonstration against
that policy, the applicant had done nothing that
could impair his usefulness or effectiveness as a
civil servant and, for that reason, had not been
guilty of misconduct. As a consequence, he direct
ed that the applicant be compensated for that
illegal suspension.
The Adjudicator took a different view of the
applicant's behaviour subsequent to the first sus
pension. He described that behaviour in the follow
ing terms:
Following his first suspension Mr. Fraser concluded that his
criticisms of the metric conversion policy gave him a "plat-
form" to discuss in public the Government program that really
interested him, namely his opposition to the Constitution. He
made himself available for newspaper interviews, appearances
on television and radio hot-line interview programs. He became
a celebrity. The momentum that followed his achievement of
celebrity status was fed by his deliberate and strident rhetoric.
This of course resulted in further media coverage. Mr. Fraser
not only criticized Government policies but denounced the
manner in which Government and its leaders were conducting
and administering the affairs of the nation.
The Adjudicator concluded that in engaging in a
public campaign against the Prime Minister, the
Government and some of its policies, the applicant
had exceeded the bounds of propriety and that
there had been good grounds for his second sus
pension and his discharge. As I understand the
decision, the Adjudicator reached that conclusion
because he considered that the applicant's behavi
our after his first suspension had in effect impaired
his usefulness and effectiveness as a civil servant.
The applicant's counsel challenged that decision
on many grounds. First, he argued that the
Adjudicator had been wrong in rejecting his sub
mission that a civil servant is entirely free to
criticize the Government and its policies provided
that those criticisms are not related to his work,
his department or his superiors in the department.
I see no merit in that argument. In my opinion, the
Adjudicator quite correctly assumed, first, that a
civil servant was guilty of misconduct if he acted
in a manner which impaired or was likely to
impair his usefulness or effectiveness as a civil
servant and, second, that a civil servant could
impair his usefulness as a civil servant by criticiz-
ing Government policies which were not related to
his department. I add that whether or not, in a
given case, the behaviour of the civil servant is
such as to constitute misconduct and justify the
employee's suspension or dismissal is, in my view,
a question of fact that should be left to the
adjudicators.
Counsel for the applicant also said that the
Adjudicator had erred in law in making reference
to the "public perception" of the applicant's
behaviour while there was no evidence before him
of such a perception. This argument, as I under
stand it, is that the Adjudicator concluded that the
applicant had, by his behaviour, impaired his use
fulness as a civil servant while there was no evi
dence of that impairment. The answer to that
argument is found in the decision of this Court in
Stewart v. Public Service Staff Relations Board 2 .
For an adjudicator to conclude that a civil servant
has been guilty of misconduct because he acted so
as to impair his usefulness as a civil servant, it is
not necessary that there be evidence of that
impairment before the adjudicator; it is sufficient
that there be evidence of a behaviour which, in the
adjudicator's opinion, is such as to impair the
usefulness of the civil servant.
Another argument made on behalf of the appli
cant was that the Adjudicator erred in law in
emphasizing the applicant's duties without taking
into consideration his rights and freedom of
speech. That argument is not founded. The truth is
that the Adjudicator refused to write a treatise on
all aspects of the freedom of speech of civil ser
vants and limited himself to answering the ques
tion that was legally before him: had the appli
cant's conduct been such as to constitute
misconduct warranting his suspension and dis
charge? In so doing, the Adjudicator, in my view,
acted legally and wisely.
Finally, counsel for the applicant said that the
Adjudicator had erred in law in failing to take into
consideration the illegality of the direction given to
the applicant by his supervisor enjoining him from
making any further public statements criticizing
the Government. I do not grasp the force of that
argument. Even if that direction were couched in
too broad language (a question that need not be
2 [1978] 1 F.C. 133 (C.A.).
decided here), this would not provide an excuse for
the applicant's behaviour. His avenue for redress,
if he was entitled to any, was by the grievance
procedure.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application' to
review and set aside a decision of the Deputy
Chairman of the Public Service Staff Relations
Board ("the Adjudicator") on a reference to
adjudication of grievances brought by the appli
cant, Mr. Fraser. Mr. Fraser referred three griev
ances to adjudication under section 91 of the
Public Service Staff Relations Act 4 ; one had to do
3 Subsection 28(1) of the Federal Court Act provides:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon
the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
4 Subsection 91(1) of the Public Service Staff Relations Act ,
provides:
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.
Subsection 96(2) of the Public Service Staff Relations Act
provides in part:
96....
(2) After considering the grievance, the adjudicator shall
render a decision thereon ...
with a three-day suspension from work; another
with a ten-day suspension; and the third, the most
important of course, with his dismissal. The
Adjudicator allowed the first grievance, but dis
missed the others. The suspensions and discharge
had been imposed for alleged misconduct. The
alleged misconduct involved in part criticism by
Mr. Fraser of policies which, in his view, were
being pursued by the Government of Canada on
metrication and constitutional change. But the
conduct for which he was disciplined went beyond
mere criticism of Government policies. It is sum
marized by Mr. Justice Pratte in his reasons.
In his memorandum, counsel for the applicant
submitted that the basic issue was whether the
Adjudicator had erred in upholding Mr. Fraser's
dismissal having in mind that (as was submitted)
Mr. Fraser had publicly criticized the Government
respecting matters which were unrelated to his
work or to the functions of the Department in
which he was employed. This submission, as I
understand it, really involves a submission that
Mr. Fraser's conduct neither did nor could consti
tute "misconduct" for which he could be disci
plined. In essence it was a submission that to hold
that Mr. Fraser's conduct was misconduct con
stituted error in law.
Counsel made several other submissions: he sub
mitted that, in deciding that Mr. Fraser was guilty
of misconduct, the Adjudicator had regard to the
duties and responsibilities of Mr. Fraser's position
without addressing or having proper regard to the
question whether a public employee has the right
to criticize the Government; that a direction given
to Mr. Fraser by his superior not to persist in his
public criticism was illegal; and that there was no
evidence to support the Adjudicator's reference in
his reasons for decision to the public perception of
Mr. Fraser's behaviour.
The respondent's submissions were basically
that the Adjudicator's decision was one of fact and
that he had not erred in law in making it.
Mr. Fraser was dismissed by the Assistant
Deputy Minister of National Revenue, who stated,
in his letter of dismissal, that he was acting under
authority delegated to him pursuant to section 106
of the Public Service Terms and Conditions of
Employment Regulations, SOR/67-118, ("the
Regulations") 5 . It was not disputed by counsel for
the applicant that the Assistant Deputy Minister
was authorized to act for the Deputy Minister in
exercising the power conferred on the Deputy
Minister by that section. Nor was it disputed that
Mr. Lowe, Mr. Fraser's superior, had authority to
impose the ten-day suspension.
The Assistant Deputy Minister, in dismissing
Mr. Fraser, did so for "misconduct".
At the time of his dismissal, Mr. Fraser
occupied the position of Group Head (AU-3) of
the Business Audit Division. He worked in the
Kingston District Office of the Department of
Revenue Canada. He had worked with the Depart
ment for about ten years, and had been employed
as Group Head for approximately five years.
Throughout his employment his work had been
"satisfactory to very satisfactory".
It is quite clear that the performance of the
duties of his position did not directly involve the
policies he criticized, and it is also clear that the
conduct for which he was disciplined occurred
away from his place of work and on his own time.
In support of his principal submission, counsel
stressed that Mr. Fraser was both a public
employee and a Canadian citizen; it was argued
that his right to freedom of expression could be
limited only to the extent that the exercise of this
right would be incompatible with the effective
performance of the duties of his position. I would
5 Section 106 of the Regulations, in relevant aspect,
provides*:
106. Subject to any enactment of the Treasury Board, a
deputy head may
(a) establish standards of discipline
(i) for employees,
(b) prescribe, impose and vary or rescind, in whole or in
part, the financial and other penalties, including suspen
sion and discharge, that may be applied for breaches of
discipline or misconduct by persons referred to in para
graph (a).
* [See Personnel Management Manual, Vol. 8, "Compensa-
tion", Appendix A, being TB 665757, issued by the Treasury
Board of Canada on March 2, 1967—Ed.]
observe that Mr. Fraser was an employee of Her
Majesty in right of Canada 6 . He was not, strictly
speaking, an employee of the Government of the
day. It was not, however, contested that there
could be situations in which public criticism of
Government policy could impair the capacity of a
public employee to perform the duties of his posi
tion. A senior public employee could, for example,
be in a position of confidence in relation to the
Government or some of its members. It might also
be possible that public criticism of a policy which
was being administered by a public employee
might be such as to impair his effectiveness. A
problem, however, is—and this was emphasized by
counsel for the applicant—that policies being pur
sued by a government are eminently proper sub
jects for debate and criticism by Canadian citizens
and others, and Mr. Fraser is a citizen. It seems to
me, however (and I do not think it was disputed),
that the duties and responsibilities of a public
employee may be such as to place limits on his
criticism to the extent it would impair his capacity,
as an employee, to perform or observe them. An
obvious example is the limitation placed by section
32 of the Public Service Employment Act, R.S.C.
1970, c. P-32, on partisan political activity, a
limitation which does, however, leave some scope
for such activity; a public employee may, in addi
tion to other activities, be granted leave of absence
to become a candidate for elective office if the
Public Service Commission is "... of the opinion
that the usefulness to the Public Service of the
employee in the position he then occupies would
not be impaired by reason of his having been a
candidate for election ..."; I find the statutory
standard helpful for purposes of the present case
though it is not directly applicable. There is, of
course, no suggestion that Mr. Fraser contravened
section 32.
There must obviously be a grey area between
public criticism of policy that would clearly impair
a public employee's usefulness in his position and
"Employer" is defined (in relevant aspect) in section 2 of
the Public Service Staff Relations Act:
2. ...
"employer" means Her Majesty in right of Canada as repre
sented by,
(a) in the case of any portion of the public service of
Canada specified in Part 1 of Schedule I, the Treasury
Board, ...
that which would not. It may happen that disci
pline is imposed on a public employee for conduct
which falls within this area. If so, the employee
may grieve and his grievance will, if he chooses, go
to adjudication. The ultimate disposition of the
grievance is committed by the Public Service Staff
Relations Act to an adjudicator who will consider,
as the Adjudicator did in this case, the employee's
claim that he was exercising his freedom of
expression in a way not inconsistent with the duties
of his position and the claim of the disciplining
authority that his conduct, including his speech,
impaired his effectiveness'. This may well involve
a careful assessment by the adjudicator of the
nature and duties of the employee's position and
the effect of the impeached conduct on the
employee's ability to perform his duties. The
adjudicator's decision is, of course, subject to judi
cial review, but only on the grounds specified in
section 28 of the Federal Court Act.
I have trouble with counsel's description of the
central issue in this case. The decision which is
being reviewed is that made by the Adjudicator in
dismissing two of the grievances referred to him by
Mr. Fraser. The basis of his decision that there
was cause for suspension and dismissal must be
sought in his decision and in his reasons for it. His
decision was not based simply on Mr. Fraser's
criticism of the Government's policies on metrica
tion and on constitutional change, but on the
totality of Mr. Fraser's conduct following his first
suspension. In his reasons, the Adjudicator
describes in detail the events which in his view
warranted discipline.
The Adjudicator did not regard public criticism
of Government policy as being, in itself, a cause
for discipline. He allowed the first grievance,
though the suspension was based on Mr. Fraser's
public criticism of the metrication program. And
' The interest in freedom of expression is not merely a private
or individual interest. There is an important public interest in
freedom of expression as well as in an effective and impartial
public service: see, for example, Reference re Alberta Statutes,
[1938] S.C.R. 100, per Chief Justice Duff, at pp. 132-133.
his reasons contain this significant passage at page
31:
Mr. Newman relied on these statements ... for the bald
proposition that a public servant is prohibited, save to the
extent he is shielded by trade union immunity, from making
any public pronouncement in opposition to Government policy.
I simply do not accept the soundness of that position. In my
view, Mr. Jolliffe indicated that a public servant is duty-bound
to exercise restraint; he did not say that he must remain
silent ....
The statements on which Mr. Newman (who
represented Treasury Board at the adjudication)
"relied" were statements of the Adjudicator in the
Stewart case, a case which came on to this Court 8 .
This passage from his reasons shows that the
Adjudicator was of opinion that a public employee
may criticize Government policy publicly, exercis
ing reasonable restraint. And he did not, as I read
his reasons, overlook this right in determining
whether Mr. Fraser's conduct, in its totality, con
stituted misconduct.
It seems to me that the Adjudicator recognized
that he was operating within the grey area to
which I have referred; and I cannot say, having in
mind all of the circumstances he took into con
sideration, that his decision was such as could not
be reasonably supported. And it also seems to me
that his conclusion amounted to a conclusion that,
reasonably considered, Mr. Fraser's conduct was
such that his usefulness to the Public Service in
the position he occupied had been impaired.
Whether his conclusion was in fact right or wrong
is not in itself reviewable on a section 28
application.
I will conclude by considering counsel's other
submissions:
The Adjudicator did address the question
whether a public employee has a right to criticize
the Government, and I have not been persuaded
that he erred in law in the way he addressed it.
The direction given to Mr. Fraser, in association
with his initial suspension, not to continue his
public criticism, may possibly have been too broad
or otherwise questionable. I agree, however, with
Mr. Justice Pratte that that would not be enough
8 Stewart v. Public Service Staff Relations Board, [1978] 1
F.C. 133 (C.A.).
to justify his reaction if, as the Adjudicator found,
the reaction constituted misconduct. Counsel did
not invoke paragraph 2(b) of the Canadian Chart
er of Rights and Freedoms on this or other aspects
of the case, possibly because the conduct involved,
the disciplinary decisions, the filing of the griev
ances, and the reference to adjudication all
occurred before the proclamation of the Charter.
We are not, therefore, faced with any issue under
paragraph 2(b) of the Charter.
I would give the same answer as does Mr.
Justice Pratte to the submission that there was no
evidence to support the Adjudicator's reference to
the public perception of Mr. Fraser's behaviour.
It was not submitted that the Adjudicator acted
without jurisdiction or denied Mr. Fraser natural
justice. I have not been persuaded that the
Adjudicator erred in law. I would, therefore, dis
miss the section 28 application.
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.