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G. Mansour Gabriel (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, P.Q., Sep- tember 11 ; Ottawa, September 28, 1972.
Judicial review—Public Service—Demotion of public serv- ant—Jurisdiction to review—Federal Court Act, s. 28.
The Trial Division has no jurisdiction to review a decision to demote a public servant made under the grievance proce dure set out in the Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
MOTION to strike out statement of claim. R. Cousineau for defendant, applicant.
The plaintiff in person.
WALsx J.—Plaintiff's declaration sets out that he submitted a grievance "in view to reach an internal and friendly settlement", but "to no avail but provoking an incidental grievance".
The Public Service Staff Relations Act, R.S.C. 1970', c. P-35 sets out in sections 90 1 -99 the procedure for presenting grievances. Section 95(3) provides:
95. (3) Where
(a) a grievance has been presented up to and including the final level in the grievance process, and
(b) the grievance is not one that under section 91 may be referred to adjudication,
the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
Where a grievance is referred to adjudication, section 96(1) provides:
96. (1) Where a grievance is referred to adjudication, the adjudicator shall give both parties to the grievance an opportunity of being heard.
Section 100(1) provides:
100. (1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be questioned or reviewed in any court.
It would appear that the decision to demote plaintiff, if confirmed by properly conducted grievance procedures in accordance with the Act is an administrative one and not subject to review by any court.
Plaintiff makes the point, however, that the audi alteram partem rule was completely ignored, and invokes "natural justice", com plaining particularly that his demotion in clas sification was given retroactive effect.
If these claims give him a legal right to be heard before the Court, and I am not so decid ing, his right would in any event be to proceed before the Court of Appeal under section 28 of the Federal Court Act and not before the Trial Division.
Defendant's motion for an order striking out plaintiff's declaration on the ground that it dis closes no reasonable cause of action should be maintained in so far as the present proceedings are concerned, but under the circumstances of this case, without costs.
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