A-737-81
Rémi St-Louis (Applicant)
v.
Treasury Board (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Hyde
D.J.—Montreal, November 4 and 5, 1982.
Public service — Conflict of interest — Applications to
review and set aside — Department of National Revenue
auditor discharged for having done accounting work for third
parties outside office hours, contrary to employer's conflict of
interest guidelines — Referred to adjudication, grievance
against discharge upheld in part only, penalty being reduced to
27 months suspension — Adjudicator's decision to hear griev
ance in camera not prejudicial to applicant — Adjudicators
acting under Public Service Staff Relations Act not required
by law to hold hearing in public — Guidelines in conformity
with standards of discipline established by Deputy Minister —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Public Service Terms and Conditions of Employment Regula
tions, SOR/67-118, s. 106.
Judicial review — Applications to review — Public Service
— Employee discharged for conflict of interest — Grievance
referred to Adjudicator Hearing in camera — No statutory
requirement for public hearing — Applicant not prejudiced —
Application dismissed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
The applicant, an auditor at the Department of National
Revenue, Taxation, was discharged for having done accounting
work for third parties outside office hours, in breach of his
employer's conflict of interest guidelines. His grievance against
the discharge was referred to adjudication. The Adjudicator
decided to hear this grievance in camera to avoid causing
prejudice to third parties. He found that the applicant had on
numerous occasions violated his employer's conflict of interest
guidelines but, considering the penalty too harsh, reduced it to
suspension for 27 months. The applicant argues that the
Adjudicator improperly ordered the exclusion of the public and
that such exclusion caused him prejudice. He further argues
that the standards of discipline which he allegedly breached
have never been validly brought into effect.
Held, the application should be dismissed. The decision to
hold the adjudication in camera, made for a legitimate purpose,
caused no prejudice to the applicant. Furthermore, adjudicators
acting under the Public Service Staff Relations Act are not
expressly required by law to hold hearings in public. The
specific guidelines which the applicant violated were in con
formity with the standards of discipline validly established by
the Deputy Minister.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Scott v. Scott, [1913] A.C. 417 (H.L.).
REFERRED TO:
Re Legal Professions Act and The Benchers of the Law
Society of British Columbia, [1945] 4 D.L.R. 702
(B.C.C.A.).
COUNSEL:
Rolland Pépin for applicant.
Robert Lee for respondent.
SOLICITORS:
Rolland Pépin, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: This is an application under section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] to set aside a decision of an
Adjudicator who, acting under the Public Service
Staff Relations Act [R.S.C. 1970, c. P-35], upheld
in part only the grievance the applicant had pre
sented following his discharge.
The applicant was an auditor at the Department
of National Revenue, Taxation. He was dis
charged on October 11, 1979 because he had
often, outside office hours, done accounting work
and prepared tax returns for third parties. He
presented a grievance against his discharge. The
grievance was referred to adjudication. The
Adjudicator found that the applicant had on
numerous occasions violated his employer's con
flict of interest guidelines, which apparently pro
hibited activities such as those in which the appli
cant had engaged. However, the Adjudicator ruled
that discharge was too harsh a penalty. He accord
ingly reduced the penalty imposed to suspension
for 27 months.
It is that decision which the applicant is now
disputing. He raised a number of arguments in
support of his appeal. As we stated at the hearing,
it seems to us that only two of them are worthy of
consideration.
The first of these arguments concerns the fact
that the Adjudicator decided to hear the grievance
in camera in order to protect the confidentiality of
the information contained in the accounting docu
ments prepared by the applicant outside working
hours. To adopt the expression used before us, the
Adjudicator wished to protect the [TRANSLATION]
"financial privacy" of those for whom the appli
cant had worked.
Counsel for the applicant objected to this exclu
sion of the public, which, he maintained, pre
judiced his client by allowing the employer's wit
nesses to testify in private. This argument seems to
us to be without foundation. It cannot be said that
the applicant suffered any prejudice whatsoever as
a result of the adjudication being held in camera.
We nonetheless decided to hear counsel for the
respondent on this point because for a while we
wondered whether the very strict rules governing
public hearings in the courts (see Scott v. Scott,
[1913] A.C. 417 (H.L.)) did not also apply to
adjudication hearings. We came to the conclusion
that this was not the case. Adjudicators acting
under the Public Service Staff Relations Act are
in the same situation as tribunals other than the
courts which are not expressly required by law to
hold hearings in public; they are not governed by
the rules applicable to the courts, although it is
desirable for them to apply the same principles
(see the British Columbia Court of Appeal's deci
sion in Re Legal Professions Act and The Bench-
ers of the Law Society of British Columbia,
[1945] 4 D.L.R. 702 (B.C.C.A.)).
Returning to the matter we are concerned with,
I do not think that the Adjudicator's decision to
proceed in camera is open to criticism since it was
made for the legitimate purpose of avoiding preju
dice to third parties who were in no way involved
in the adjudication.
The second argument of the applicant that must
be considered is more difficult to formulate. I hope
I am doing it justice by setting it out as follows.
The applicant could be discharged only for mis
conduct or a breach of standards of discipline
validly established by the Deputy Minister under
section 106 of the Public Service Terms and Con
ditions of Employment Regulations [SOR/67-
118]. The conduct in which the applicant allegedly
engaged could not be characterized as misconduct;
nor could it, again according to the applicant, be
regarded as a breach of discipline since it was not
proved that the prohibition against the applicant
and his colleagues performing accounting work
outside office hours was ever validly brought into
effect by the Deputy Minister.
The answer to this argument, in my view, is that
it is beyond dispute that in acting as he did, the
applicant violated specific guidelines of which he
had been informed and that it was not proved that
these guidelines were not in accordance with the
standards of discipline established by the Deputy
Minister.
For these reasons I would dismiss the applica
tion.
RYAN J. concurred.
HYDE D.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.