Norman L. Wright (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, June 5 and 8, 1973.
Public service—Adjudication of grievance—Jurisdiction—
Employee illegally rejected after probation—Reference to
adjudicator—Decision that employee's dismissal justified on
other grounds—Affirmation by Staff Relations Board—Ju-
dicial review—Decision set aside—Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35, secs. 23, 91(1).
W, a "child careworker" in the public service, was reject
ed for cause after his probationary period had expired,
which was illegal. He presented a grievance alleging the
illegality of his rejection. The grievance was referred to
adjudication. The adjudicator held that the rejection was a
nullity but that Ws dismissal was justified because his
personality was not suited to the position. The Public Ser
vice Staff Relations Board, on a reference to it under
section 23 of the Public Service Staff Relations Act, held
that the adjudicator did not err in law in so deciding.
Held, the decision of the Board must be set aside. The
rejection of W was a nullity because it was made after the
expiration of the period of probation, and it could not be
treated as a discharge for misconduct. Accordingly, there
was no "disciplinary action" within the meaning of section
91(1) of the Public Service Staff Relations Act that could be
referred as a grievance, and the adjudicator should therefore
have dismissed the reference for lack of jurisdiction.
JUDICIAL review.
COUNSEL:
M. W. Wright and J. L. Shields for
applicant.
J. E. Smith and P. Delage for respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is a section 28
application" to review and set aside a decision
of the Public Service Staff Relations Board
answering certain questions of law or jurisdic-
tion that had arisen in connection with a deci
sion of the Chief Adjudicator on a grievance
presented by the applicant and that had been
referred to the Board under section 23 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35.
The applicant was employed as a "child care-
worker" in the Alberni Indian Student Resi
dence when that institution became a part of the
Department of Indian Affairs and Northern De
velopment on April 1, 1969.
Pursuant to section 39 of the Public Service
Employment Act, his position had been "exclud-
ed" from the operation of the provisions of that
Act and was subject to regulations reading in
part as follows:
3. Where the Department of Indian Affairs and Northern
Development requires the services of a residence adminis
trator or child care worker, the deputy head of that
department
(a) shall recruit and select a person to provide those
services having regard for the language requirements of
the position as specified in section 20 of the Public
Service Employment Act; and
(b) upon selecting the person to provide those services,
may appoint that person to the position he is to occupy.
4. Where a person has been appointed to the position of
residence administrator or child care worker, he shall be
subject to sections 21, 26, 27, 31 and 32 of the Public
Service Employment Act and to any provisions of the Public
Service Employment Regulations relating thereto.
5. (1) A person who has been appointed to the position of
residence administrator or child care worker is on probation
for a period of twelve months from the date of his
appointment.
(2) The deputy head may, at any time during the proba
tion period, give notice to a person that he intends to reject
that person for cause on the day stated in the notice, which
day shall not be less than thirty days from the date of the
giving of the notice and, that person ceases to be an
employee on that day.
More than twelve months after his being
employed in the Public Service, on June 25,
1970, the Department addressed a letter to the
applicant giving him notice of intention "to
reject" him "for cause". The applicant there
upon presented a grievance in respect of his
rejection in which the "Details of Grievance"
read as follows:
On June 30, 1970, I was given a letter dated June 25, 1970 ;
advising me that I was to be rejected under section 28(3) of
the Public Service Employment Act and told my employ
ment with the Department would terminate on July 31,
1970.
In accordance with Schedule "A" of the Public Service
Staff Relations Act regulations, my probationary period
expired on October 1, 1969 and my service cannot be
terminated under Section 28(3) of the Public Service
Employment Act.
In due course, there was a reference of this
grievance to "Adjudication" and the matter was
dealt with by the Chief Adjudicator.
The Chief Adjudicator disposed of a prelim
inary objection by the "Employer" that this
reference was not "adjudicable" by holding that
the "so-called `rejection' of the aggrieved
employee under Section 28 of the Public Ser
vice Employment Act was a nullity, and that he
must be regarded as an employee who had com
pleted his probationary period on March 31,
1970, and was at a later date effectively dis
charged." He therefore directed "that a hearing
be held on the merits". This is explained by a
passage in the Chief Adjudicator's decision
after the hearing on the merits, which reads as
follows:
Naturally and correctly, the original grievance contested
the so-called "rejection on probation," but it was not until
some weeks after the matter had been referred to adjudica
tion that counsel for the Employer acknowledged the
departmental error in proceeding under Section 28 of the
Public Service Employment Act, which was not and could
not be applicable to Mr. Wright's case. I wish to make it
clear, however, that I am making this decision on the merits,
i.e. on the real issue in dispute, and not upon any question of
law or procedure. The real issue is whether, on June 30,
1970, there existed proper grounds for terminating Mr.
Wright's employment, by whatever name that termination
might be called.
After the hearing on the merits, the Chief
Adjudicator made a finding that appears from
the following passage of his reasons:
I have arrived at my conclusion in this case by a some
what different route from those favoured by the parties. To
terminate Mr. Wright's employment was disciplinary action
within the meaning of Section 91(1)(b) of the Public Service
Staff Relations Act, but the grounds on which the Employer
proceeded were not specific offences in the usual sense. The
employer contends that discharge was deserved by reason
of "incompetence." The bargaining agent argues in effect
that Mr. Wright did his job too well and that the problems
arising out of his employment are attributable to others
rather than to him.
I do not think that either "incompetence" or "perfection-
ism" are the real issues. The composite of numerous factors
which led to termination cannot be described in a word or
even a sentence.
We are concerned here with an institution which is almost
entirely committed to a very special kind of human rela
tions. Child care workers are not engaged in industry or
commerce; they cannot be correctly described as teachers
or nurses or custodial officers. Their first and foremost
objective is stated in Exhibit 10 to be as follows: "The child
care worker seeks always to provide a home-like atmos
phere for the children in his care."
In this context, it is obvious that the personal relations of
a worker with the children and with his colleagues must be
of very high importance. Fifteen child care workers cannot
function successfully except as a team, acting in close
co-operation with each other and with their administrator.
Children, as is well-known, quickly sense tension between
their elders. Unless the children respect those in authority,
they are not likely to be loyal followers.
Unfortunately, Mr. Wright's approach to child care was
not the same as that of the administrator or most of his
colleagues. He has considerable ability and a strong asser
tive personality. The result was that he gradually became
what might be termed leader of the opposition. Perhaps
without being fully aware of what he was doing, his activi
ties tended to polarize opinion among the child care workers
and produce two distinct factions. It seems clear to me that
conditions which had developed at the Residence in the
spring and early summer of 1970 could not be allowed to
continue.
I do not for a moment suggest that Mr. Wright was
exclusively at fault. As Mr. Andrews observed in his proba
tion report, all humans are imperfect and few are more
perfect than others. However, the circumstances were such
and Mr. Wright's character is such that he recruited both
supporters and opponents throughout the institution. There
was testimony, which I accept, that in his absence during the
current year factionalism has subsided and there is less
tension.
I cannot accept the argument that nothing occurred
between March and June of 1970 to justify the decision to
terminate. The complaint about the gymnasium doors being
locked was made on May 20 by a supervisor who had only
arrived late in March and was already at odds with Mr.
Wright. Early in June, certain staff members were threaten
ing to resign. Although he had been clearly informed in
March of an unfavourable appraisal, Mr. Wright gives no
indication that he recognizes its validity or ever did. He
seeks reinstatement on the basis that he did a good job, his
views and his methods were correct and the motivation for
discharge was improper.
I do not doubt that Mr. Wright has energy, ability and high
standards of personal conduct and efficiency. He could
serve wisely and well in another capacity. In my view,
society is sadly mistaken in its reluctance to utilize men in
their sixties who are capable of making a useful contribu
tion. A man like Mr. Wright, physically and mentally vigor
ous and far from being ready for retirement, should be in
greater demand. At the same time, I find that he is unsuited
to the special requirements of child care work. [The under
lining is mine.]
In those circumstances, the Chief Adjudicator
expressed the opinion that "a rejection while on
probation would have been appropriate" but
"Actually ... the aggrieved employee was dis
charged, three months after probation".
The portion of the "Decision" of the Chief
Adjudicator that has been treated as being the
operative portion thereof reads as follows:
I conclude with regret that termination of employment was
justified and was necessary for the welfare of the institution
at which he had been employed. In my view, the discharge
ought to have been validated formally in June by the Treas
ury Board, and I require that this be done forthwith.
The following questions were then referred
by the applicant to the Public Service Staff
Relations Board:
(a) Has the Chief Adjudicator erred in law by not accept
ing Mr. Wright's contention that his discharge was unlaw
ful in that Treasury Board approval had not been request
ed or obtained by the Department of Indian Affairs and
Northern Development as required by Section 106(d) of
the Public Service Terms and Conditions of Employment
Regulations (SOR/67-118 as amended)?
(b) Has the Chief Adjudicator exceeded his jurisdiction
by directing the Treasury Board to give said approval to
Mr. Wright's discharge.
The Board's decision, as set out in the "Reasons
for Decision" of the majority, was that "the
Chief Adjudicator did not err in law in respect
of the issues" raised by the first question. The
Board expressed no opinion concerning the
Chief Adjudicator's direction to Treasury
Board.
It is that "decision" of the Public Service
Staff Relations Board that this Court is asked to
consider and set aside under section 28 of the
Federal Court Act.
This Court is asked to set aside the Board's
decision under section 28 on the ground that the
Board "erred in law in making its decision". To
decide whether the application should succeed
requires, therefore, a conclusion as to what the
Board was, in law, required to do.
The reference to the Board was made under
section 23 of the Public Service Staff Relations
Act, which reads as follows:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the
Arbitration Tribunal or to an adjudicator pursuant to this
Act, the Arbitration Tribunal or adjudicator, as the case may
be, or either of the parties may refer the question to the
Board for hearing or determination in accordance with any
regulations made by the Board in respect thereof, but the
referral of any such question to the Board shall not operate
to suspend any proceedings in connection with that matter
unless the Arbitration Tribunal or adjudicator, as the case
may be, determines that the nature of the question warrants
a suspension of the proceedings or unless the Board directs
the suspension thereof.
In so far as directly relevant here, therefore,
the section provides that
Where any question of law or jurisdiction arises in connec
tion with a matter that has been referred ... to an adjudica
tor pursuant to this Act, ... either of the parties may refer
the question to the Board for hearing or determination ... .
Notwithstanding the use of the word "or" in
the expression "hearing or determination" in
section 23, I am of the view that section 23
must be read as contemplating a reference of a
question of law for "determination". A refer
ence for "hearing" only would be a useless
exercise that could not have been intended.
Once it is accepted that what is contemplated
by section 23 is the reference of a question of
law for "determination", it would seem to me
that a reference under that section is very simi
lar in character to a reference to this Court
under section 28(4) of the Federal Court Act
and, in my view, much of my reasoning in a
recent decision concerning section 28 applies
equally to section 23.21
It is important to note that section 23 is not
authority for an advisory opinion such as is
authorized by section 55 of the Supreme Court
Act, under which a question is referred to the
Supreme Court of Canada for "hearing and con
sideration" and that Court is required to express
"its opinion" upon a question so referred.
The key question in determining the duty of
the Board under section 23 is what is meant, in
the context of section 23, by the word "deter-
mined". In my view, a question of fact is
"determined" by making a finding of fact,
where there has been a dispute with regard
thereto, on the evidence. Similarly, in my view,
a question of law is "determined" by making a
finding as to the legal consequences that flow
from facts as found or agreed upon, where there
has been a dispute as to what such legal conse
quences are. It follows, in my view, that, where
there is a dispute as to the correctness in law of
an adjudicator's decision, the obvious, if not the
only, question of law that can be "determined"
by the Board is whether, on the facts as found
by the adjudicator, the adjudicator's finding as
to the legal consequences that flow from those
facts is correct and, if not, what are the legal
consequences that flow from those facts. I find
it difficult to envisage any other type of ques
tion of law, as opposed to jurisdiction, that may
be referred under section 23 after the adjudica
tor has finally disposed of the matter before
him. Certainly, as I understand section 23, it
does not contemplate the "determination" of a
question of law that is expressed in hypothetical
terms or that is of an academic character.
One further aspect of section 23 requires to
be considered. It authorizes "determination" of
a question of law that arises in connection with
a matter that has been referred to an adjudicator
but there is no express authority for the Board
to implement its determination by referring the
matter back to the adjudicator or by substituting
a correct decision for a decision of the adjudica
tor that it finds to have been wrong in law.
However, in spite of the lack of specific statu
tory direction, section 23 must, in my view, be
so interpreted and applied as to make the
remedy accorded thereby an effective remedy.
In a case such as the present, this result flows
quite readily from the statute. Where the Board
has to determine the legal consequences that
flow from the facts as found by the adjudicator
because the adjudicator's effective decision
wrongly reflects those legal consequences, for
the purposes of the statute, the Board's determi
nation replaces the adjudicator's decision so
that, if the Board determines that, on the facts,
the law calls for a decision that "requires any
action by or on behalf of the employer", the
employer will be required by section 96(4) to
take the action so required and not the action
required by the adjudicator's incorrect decision.
In effect, for the purposes of section 96, the
Board's determination, in such a case, replaces
the adjudicator's decision and should be framed
accordingly.
On the view that I have expressed as to the
effect of section 23, there must be considerable
doubt as to whether the questions referred to
the Board constitute a reference of the only
question that could properly have been referred
in the circumstances to the Board under section
23. Question (a), in terms, seeks an opinion on a
legal problem that would affect the correctness
of the Chief Adjudicator's decision on one view
as to the answer to another legal problem that
arises on the facts as found by the Chief
Adjudicator. Question (b) again assumes a par
ticular view as to the answer to one legal prob
lem that arises on those facts and seeks an
answer to another legal problem. I am referring
to the fact that both questions assume that there
was a "discharge" of the applicant. (As I shall
later indicate, there was, in my opinion, no
basis, on the facts, for such an assumption.) On
a very strict approach to the problem, one
might, therefore, take the position that there had
never been a reference to the Board for "deter-
mination" of a question such as is contemplated
by section 23 and that the Board should have
disposed of the matter accordingly.' Possibly
unduly influenced by the very long delay that
has occurred, I have concluded that it is un
necessary to take such a strict view of the
matter. It is clear that what the applicant was
referring to the Board was a question of law as
to whether the Chief Adjudicator's decision cor
rectly reflected the legal consequences flowing
from the facts as found by him and I think it
may be inferred that what the Board was being
asked to do was to make a "determination" that
truly reflects the legal consequences flowing
from those facts having regard to the statutory
jurisdiction of an adjudicator.
On that view of the matter, what has to be
decided on this application is what the Board's
determination should have been on the refer
ence to it under section 23, namely,
(a) Was the Chief Adjudicator's disposition
of the reference to him wrong as a matter of
law? and
(b) If his disposition of the matter was wrong
in law what disposition should the Chief
Adjudicator have made of it?
Before considering that matter, it is necessary
to make some reference to the statutory provi
sions that are relevant to the various points that
arise.
The reference of a grievance to adjudication
is part of the grievance procedure established
by and pursuant to the Public Service Staff
Relations Act, the relevant provisions of which
read as follows:
PART IV
GRIEVANCES
Right to Present Grievances
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 griev
ance process provided for by this Act.
Adjudication of Grievances
Reference to Adjudication
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.
Decision of Adjudicator
96. (2) After considering the grievance, the adjudicator
shall render a decision thereon and
(a) send a copy thereof to each party and his or its
representative, and to the bargaining agent, if any, for the
bargaining unit to which the employee whose grievance it
is belongs; and
(b) deposit a copy of the decision with the Secretary of
the Board.
(4) Where a decision on any grievance referred to adjudi
cation requires any action by or on the part of the employer,
the employer shall take such action.
(5) Where a decision on any grievance requires any action
by or on the part of an employee or a bargaining agent or
both of them, the employee or bargaining agent, or both, as
the case may be, shall take such action.
The striking difference between the scope of
the matters in respect of which an employee
may "grieve" under section 90(1) and the scope
of matters in respect of which there may be a
reference to "Adjudication" under section 91(1)
is brought about by the omission from the latter
provision of the matters covered in section
90(1) by paragraph (a)(i). In other words, while
there is a right to "Adjudication" in respect of
(a) the interpretation or application in respect
of the grievor of a provision of a collective
agreement or an arbitral award, or
(b) disciplinary action resulting in discharge,
suspension or a financial penalty,
there is no right to adjudication, as such, in
respect of grievances in respect of the interpre
tation or application, in respect of the grievor,
of a provision of a statute, or of a regulation,
by-law, direction, or other instrument made or
issued by the employer, dealing with terms or
conditions of employment.
The view upon which jurisdiction was taken
by the Chief Adjudicator 4 in this case would
seem to be that reflected in the following para
graph taken from that part of the Reasons for
Decision of the majority of the Board where the
submissions of "Counsel for the Employer"
were being summarized:
9. At first glance, the question may well arise as to whether
an adjudicator has any authority to inquire into a complaint
by an employee arising out of his termination of employ
ment under the provisions of the Public Service Employ
ment Act. Prima facie, the answer might appear to be in the
negative. However, an adjudicator does have jurisdiction to
ascertain whether what purported to be a termination under
some provision of the Public Service Employment Act was
in fact disciplinary action resulting in discharge. If the facts
adduced in evidence in any particular case establish that
termination was disciplinary, the adjudicator has the right to
hear both parties and to decide whether the penalty was or
was not warranted.
Apart from retirement on superannuation, the
statutory law governing the Public Service as
changed by the 1966-67 legislation would seem
to envisage various means by which a person
may become separated from employment in the
Public Service. The following are expressly
dealt with:
1. Resignation
See section 26 of the Public Service Employ
ment Act which reads as follows:
26. An employee may resign from the Public Service by
giving to the deputy head notice in writing of his intention to
resign and the employee ceases to be an employee on the
day as of which the deputy head accepts in writing his
resignation.
2. Rejection
See section 28 of the Public Service Employ
ment Act which reads as follows:
28. (1) An employee shall be considered to be on proba
tion from the date of his appointment until the end of such
period as the Commission may establish for any employee
or class of employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate
in any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the proba
tionary period, give notice to the employee and to the
Commission that he intends to reject the employee for cause
at the end of such notice period as the Commission may
establish for any employee or class of employees and,
unless the Commission appoints the employee to another
position in the Public Service before the end of the notice
period applicable in the case of the employee, he ceases to
be an employee at the end of that period.
(4) Where a deputy head gives notice that he intends to
reject an employee for cause pursuant to subsection (3) he
shall furnish to the Commission his reasons therefor.
(5) Notwithstanding anything in this Act, a person who
ceases to be an employee pursuant to subsection (3)
(a) shall, if the appointment held by him was made from
within the Public Service, and
(b) may, in any other case,
be placed by the Commission on such eligible list and in
such place thereon as in the opinion of the Commission is
commensurate with his qualifications.
3. Expiration of term employment
See section 25 of the Public Service Employ
ment Act, which reads as follows:
25. An employee who is appointed for a specified period
ceases to be an employee at the expiration of that period.
4. Abandonment
See section 27 of the Public Service Employ
ment Act, which reads as follows:
27. An employee who is absent from duty for a period of
one week or more, otherwise than for reasons over which, in
the opinion of the deputy head, the employee has no control
or otherwise than as authorized or provided for by or under
the authority of an Act of Parliament, may by an appropriate
instrument in writing to the Commission be declared by the
deputy head to have abandoned the position he occupied,
and thereupon the employee ceases to be an employee.
5. Lay-off
See section 29 of the Public Service Employ
ment Act, which reads as follows:
29. (1) Where the services of an employee are no longer
required because of lack of work or because of the discon
tinuance of a function, the deputy head, in accordance with
regulations of the Commission, may lay off the employee.
(2) An employee ceases to be an employee when he is
laid off pursuant to subsection (1).
(3) Notwithstanding anything in this Act, the Commission
shall, within such period and in such order as it may
determine, consider a lay-off for appointment, without com
petition and, subject to sections 30 and 37, in priority to all
other persons, to any position in the Public Service for
which in the opinion of the Commission he is qualified.
6. Discharge or Release
There are three possible classes of discharge
or release, namely,
(a) Release for incompetency or incapacity
See section 31 of the Public Service
Employment Act, which reads as follows:
31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position
he occupies or is incapable of performing those duties and
should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that
the employee be so appointed or released, as the case may
be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be
appointed to a position at a lower maximum rate of pay or
be released.
(3) Within such period after receiving the notice in writ
ing mentioned in subsection (2) as the Commission pre
scribes, the employee may appeal against the recommenda
tion of the deputy head to a board established by the
Commission to conduct an inquiry at which the employee
and the deputy head concerned, or their representatives, are
given an opportunity of being heard, and upon being notified
of the board's decision on the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommen
dation will not be acted upon, or
(b) appoint the employee to a position at a lower max
imum rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with
regard to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to
a recommendation under this section and the employee
thereupon ceases to be an employee.
(b) Discharge as a penalty for breach of disci
pline or misconduct
See section 7(1)(f) of the Financial
Administration Act:
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 general
ity 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 circumstances
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;
(c) Others
See section 24 of the Public Service
Employment Act, which reads as follows:
24. The tenure of office of an employee is during the
pleasure of Her Majesty, subject to this and any other Act
and the regulations thereunder and, unless some other
period of employment is specified, for an indeterminate
period.
"During the pleasure of Her Majesty" is
the traditional language to describe employ
ment by the Crown that is subject to termina
tion without notice and without cause.
It is worthy of note that each of these ways of
terminating employment may give rise to possi
ble disputes as to whether the necessary things
have in fact been done and may give rise to
possible disputes as to the effect of the law. It is
only, however, in the case of "disciplinary
action resulting in discharge" that the appropri
ate method of determining the dispute is refer
ence to adjudication.
The first stage in these proceedings is that the
employer purported to "reject" the applicant
after the termination of the period during which
the employee could be rejected. It is common
ground that the purported rejection was a
nullity.
The employee's grievance concerning that
attempted "rejection" was referred to the Chief
Adjudicator. Recognizing that the rejection was
a nullity, the Chief Adjudicator nevertheless
decided that he ought, on the basis that the void
rejection was actually a disciplinary discharge,
hear and determine whether that discharge was
justified. Without making any finding of any
"breach of discipline" or of any "misconduct",
the Chief Adjudicator found that the applicant
was "unsuited to the special requirements of
child care work" and concluded, in part, "that
termination of employment was justified".
With great respect for the very careful
manner in which the Chief Adjudicator has
endeavoured to bring this matter to a just con
clusion on the merits, an effort for which he
must be commended, I find myself constrained
to conclude that there is no legal basis for his
decision.
As I view the matter, there is no evidence on
any of the material that was before any of the
tribunals involved, including this Court, that the
applicant was ever separated from his employ
ment. The rejection was admittedly a nullity as
a rejection. It did not purport to be a discharge
and it certainly did not purport to be a discharge
for misconduct. In my view, having attempted
to separate an employee from his employment
by rejection after expiration of the probationary
period, the employer could not, in this case,
after the event, rely on the rejection document
as having effected a separation of the employee
from his employment by way of dismissal for
misconduct. Not only does the rejection docu
ment not, in terms, come within the statutory
authority for dismissal but an employee cannot,
as a matter of substance, be dismissed for disci
plinary reasons or misconduct without being
informed of what is alleged against him in such
terms that he can make his answer thereto, not
only before he is discharged but also at each
stage of the grievance procedure. I repeat that,
on the material available, the applicant has, in
my view, never been separated from his
employment. Furthermore, it is difficult to see
how, on the findings of fact of the Chief
Adjudicator, there could be any question of
discharge for disciplinary reasons. On the find
ing that the applicant was "unsuited to the spe
cial requirements of child care work", it would
seem that the most appropriate provision to
consider in his case is section 31, which pro
vides a special procedure and optional treatment
for an employee who is "incompetent in per
forming the duties of the position he occupies".
On that view of the matter, there was not
before the Chief Adjudicator any "disciplinary
action". What there was before him was an
unlawful rejection and there seems to be no
possible ground for holding that he had any
jurisdiction to entertain a grievance in respect
of such a matter. He should therefore, in my
opinion, have dismissed the reference for lack
of jurisdiction.
It follows that the Board should on the refer
ence under section 23 determine that, instead of
deciding that there was a termination of employ
ment that was justified and of requiring Treas
ury Board to validate such termination of
employment, the Chief Adjudicator should have
dismissed the applicant's reference of his griev
ance to adjudication for lack of jurisdiction.
I am, therefore, of opinion that the Board's
decision should be set aside and that the matter
should be referred back to the Board for deter
mination on the basis (a) that what it was
required to determine on the reference under
section 23 was what decision the Chief
Adjudicator should have given on the facts as
found by him, and (b) that the Chief Adjudica
tor had no jurisdiction to deal with the appli
cant's reference of his grievance to adjudica
tion.
* * *
THURLOW J. (orally)—I am in substantial
agreement with the reasons for judgment of the
Chief Justice but I prefer to rest my opinion on
the result of a somewhat different approach to
the problem.
In my view, what is subject to review in this
Court under section 28 of the Federal Court Act
as the decision of the Board is neither the
Board's reasoning nor its answers to the ques
tions as framed in the reference. Its decision, in
my opinion, is its determination to confirm what
the adjudicator has done. I use the word "deter-
mination" because it is the word used in section
23 of the Public Service Staff Relations Act. In
its context there it appears to me to connote the
decision, order, judgment or legal result to be
reached by the Board. What is then in question
before this Court is the legality of the determi
nation that Wright was effectively discharged
by the purported rejection.
In my opinion that determination is invalid in
law for numerous reasons. The purported rejec-
tion of Wright was a nullity. Wright's grievance
was not referable to the adjudicator. There was
no jurisdiction in the adjudicator to adjudge the
rejection null as a rejection and no basis upon
which he could adjudge it to be a discharge. It
was by no means a disciplinary discharge. There
is no factual basis for regarding it as a discipli
nary action of any kind. It could not be regarded
as a discharge and a fortiori it could not be
regarded as a valid discharge.
I would set aside the determination of the
Board and refer the matter back to the Board to
be dealt with on the basis proposed by the Chief
Justice.
PRATTE J.—For the reasons stated by the
Chief Justice, I am of the opinion that the Chief
Adjudicator did not have any jurisdiction to
hear and render a decision on the applicant's
grievance. In these circumstances, the question
of determining whether the Chief Adjudicator
had otherwise erred in law in his disposition of
the grievance was purely academic and, as a
consequence, could not be referred to the Public
Service Staff Relations Board under section 23
of the Act, (Public Service Staff Relations Act,
R.S.C. 1970, c. P-35). The Board had no author
ity to determine the two questions of law sub
mitted by the applicant; it should have refused
to answer them.
For these reasons, I am of the opinion that
the decision now under attack should be set
aside.
' 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.
2 See Reference re section 107 of the Public Service Staff
Relations Act [1973] F.C. 604. As I indicated therein, the
Court's power under such a provision is not, in my view,
very different in kind from the power of a court to deter
mine a question of law before trial. Compare Libbey-Owens-
Ford Glass Company v. Ford Motor Company (1968) 38
Fox 76 and the cases referred to therein.
3 That is, by a decision saying that, as the questions posed
were not questions such as are contemplated by section 23,
the Board does not determine them.
I do not think, however, that so strict or technical a view
is appropriate in applying this legislation. It is not exclusive
ly a lawyer's field and a construction which favours the
exercise by the Board of its jurisdiction to determine the
point of law that actually arose on the matter and by this
process to correct errors of law seems to be more in
harmony with what was intended.
4 He says, "I have been obliged to deal with this reference
as a disciplinary discharge".
5 I express no opinion as to the correctness of certain
decisions of the Board and of adjudicators that are referred
to in the record. The cases to which I refer are cases where
an adjudicator assumed jurisdiction, although the action
taken was, in form, rejection, on the view that the rejection,
in the particular case, constituted, in fact, a discharge as a
result of disciplinary action. As I understand what is said
about those decisions (I have not had an opportunity of
reading them), in each of them the rejection was otherwise
valid but was found, in fact, not to be a bona fide exercise of
the rejection power or, in any event, was found to have
constituted, in fact, a discharge resulting from disciplinary
action so as to give an adjudicator jurisdiction where, other
wise, the employee would be separated from his employ
ment by "rejection". Each such case must turn on its own
facts. In this case, the employee was not validly rejected
and the employer is relying, after the event, on the purport
ed rejection as having been a dismissal, which it was not, so
as to justify his stand that the employee was separated from
his employment when no valid action had been taken to
separate him from his employment. In considering whether
action taken to separate an employee from his employment
that is, in form, under one authority can be treated as having
been taken under another authority, consideration should be
given to the very recent decision of the Supreme Court of
Canada in Bell Canada v. Office and Professional
Employees' International Union, Local 131, dated May 28,
1973—not yet reported.
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.