A-124-74
In re Public Service Staff Relations Act and in re
Philip L. Cooper (Applicant)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, November 5 and 6, 1974.
Judicial review—Public Service—Release of employee
effected under Public Service Employment Act, R.S.C. 1970,
c. P-32, s. 31—No grievance procedure available under
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss.
23, 90, 91, 99—Federal Court Act, s. 28.
Release from the Public Service of the applicant, as
incapable of performing his duties, was recommended by
the Deputy Minister of the Department of Energy, Mines
and Resources under section 31(1) of the Public Service
Employment Act. The recommendation was upheld by a
board established under section 31(3) of the Act and the
applicant was released. A grievance filed by the applicant
under section 90(1) of the Public Service Staff Relations Act
was rejected by the Deputy Minister as not falling within the
terms of section 90(1). The applicant then referred it to
adjudication under section 91(1) of the Act. Pending the
adjudication, the Public Service Commission, pursuant to
section 23 of the Public Service Staff Relations Act, referred
to the Public Service Staff Relations Board the question of
the adjudicator's jurisdiction. The Board held that the
aggrieved employee could not resort to adjudication under
the Public Service Staff Relations Act so long as the decision
of the Appeal Board, under section 31 of the Public Service
Employment Act, stood. The applicant made a section 28
application to set aside the Board's decision.
Held, dismissing the application, the effect of section 90
of the Public Service Staff Relations Act was that if an
administrative procedure for redress was provided by an
Act of Parliament, an aggrieved employee could not resort
to the grievance procedure under sections 90 and 91 of the
Public Service Staff Relations Act. Once the recommenda
tion of the Deputy Minister, under section 31(1) of the
Public Service Employment Act, for removal of the applicant
from the Public Service, was affirmed by an Appeal Board
under section 31(3), no grievance against that recommenda
tion could be filed under the Public Service Staff Relations
Act. A grievance presented against the release of an
employee by the Commission in these circumstances could
not be referred to adjudication under section 91(1), since it
was not a grievance in respect of a matter covered by that
subsection.
APPLICATION for judicial review.
COUNSEL:
Applicant in person.
Harvey Newman for respondent.
SOLICITORS:
Applicant in person.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of the Public
Service Staff Relations Board answering a ques
tion relating to the jurisdiction of an adjudicator
to entertain a grievance that the applicant
referred to adjudication.
The applicant was an employee of the Depart
ment of Energy, Mines and Resources when, on
April 30, 1971, he was notified that the Deputy
Minister had recommended to the Public Ser
vice Commission, under section 31 of the Public
Service Employment Act, that he be released
from his employment for the reason that he was
incapable of performing the duties of his
position.'
' Section 31 of the Public Service Employment Act 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
writing mentioned in subsection (2) as the Commission
prescribes, the employee may appeal against the recom
mendation 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 repre
sentatives, 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 recom
mendation 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.
The applicant, as he was entitled to under
section 31(3), appealed against the recommen
dation of the Deputy Minister to a board estab
lished by the Public Service Commission. The
appeal was heard in June 1971 and by a deci
sion dated June 10, 1971, the board upheld the
recommendation for the applicant's release and
dismissed his appeal. By letter dated June 30,
1971, the Public Service Commission notified
the applicant that, as a consequence of the
decision of the Appeal Board, the Commission
had, pursuant to section 31(3), authorized his
release from the Public Service.
Soon thereafter, the applicant filed a griev
ance against his release alleging that, in fact, it
was a disciplinary discharge. The applicant
acted on the view that, in the circumstances, he
was entitled to take advantage of the provision
of section 90(1) of the Public Service Staff Rela
tions Act. That section reads in part as follows:
90. (1) Where any employee feels himself to be aggrieved
(b) as a result of any occurrence or matter affecting his
terms and conditions of employment, .. .
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 thé griev
ance process provided for by this Act. 2
The applicant's grievance was rejected by the
Deputy Minister on the ground that it did not
(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.
2 See section 99(1) under which
99. (1) The Board may make regulations in relation to
the procedure for the presenting of grievances, including
regulations respecting
(a) the manner and form of presenting a grievance;
(b) the maximum number of levels of officers of the
employer to whom grievances may be presented
fall within the terms of section 90(1). The appli
cant then referred it to adjudication pursuant to
section 91(1) of the Public Service Staff Rela
tions Act which reads as follows:
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.
The applicant's grievance was about to be
heard by the adjudicator when the employer,
pursuant to section 23 of the Public Service
Staff Relations Act, referred to the Public Ser
vice Staff Relations Board the question of the
jurisdiction of the adjudicator to entertain the
applicant's grievance. 3 It was the contention of
the employer that the adjudicator had no juris
diction to dispose of the applicant's grievance
against his alleged discharge for breach of disci
pline since the termination of the applicant's
employment in the Public Service had been
effected by the Public Service Commission pur
suant to section 31 of the Public Service
Employment Act.
The way in which the Board disposed of that
question of jurisdiction appears from the fol
lowing excerpts from its "Reasons for
decision":
Section 23 of the Public Service Staff Relations Act
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.
24. As we have seen, the Deputy Minister of the Depart
ment of Energy, Mines and Resources, purporting to act
under section 31 of the Public Service Employment Act,
recommended to the Public Service Commission that the
aggrieved employee be released from the Public Service for
reasons of incapacity. The aggrieved employee was duly
given written notice of the recommendation. Within the time
prescribed by the Commission, the aggrieved employee
availed himself of a right of appeal against the recommenda
tion under section 31 of the Public Service Employment
Act. The Commission established an appeal board which
conducted an inquiry into the appeal and, at the hearing for
that purpose, the aggrieved employee appears to have had
full opportunity to present evidence and make representa
tions. The appeal board issued a decision upholding the
recommendation of the Deputy Minister and the Commis
sion, acting on the decision of the appeal board, released the
aggrieved employee.
25. The aggrieved employee now alleges that his "release"
in fact constituted disciplinary action and that he is entitled
to resort to the adjudication process under section 91 of the
Public Service Staff Relations Act. He argues that the
redress he is seeking is not against the recommendation of
the Deputy Minister and the resulting action of the Commis
sion but rather against the alleged disciplinary action of the
Employer. In other words the aggrieved employee contends
that he was not released for incapacity but was discharged
as a form of disciplinary action. He submits that there is no
redress available under any Act of Parliament for discipli
nary action other than the grievance and adjudication proce
dures established under sections 90 and 91 of the Public
Service Staff Relations Act.
26. Nevertheless, the fact remains that he did utilize the
appeal procedure provided under subsection 31(3) of the
Public Service Employment Act. The appeal board estab
lished under that section rendered a decision unfavourable
to him. He now seeks to achieve a different result by way of
the grievance and other procedures provided under the
Public Service Staff Relations Act. If the aggrieved
employee were permitted to pursue this course of action, the
Board would, in effect, be allowing him to seek redress
before two separate and independent tribunals, neither of
which has superior or appellate jurisdiction over the other.
It is conceivable that the two tribunals might render conflict
ing decisions. Such a possible result is obviously highly
undesirable; it would invite, indeed perhaps necessitate,
interventions by the Federal Court of Appeal to review the
matter.
27. In our view the principle of what might be described as
judicial comity—or in this case comity between tribunals—
must apply here. One independent tribunal operating in the
Public Service context must give effect to the decision of
another similar tribunal, not as a matter of obligation of law,
but as a matter of propriety. Applying the principle to the
circumstances of the instant case, it is our determination
that the aggrieved employee cannot resort to the adjudica
tion procedure under the Public Service Staff Relations Act
so long as the decision of the appeal board established under
section 31 of the Public Service Employment Act stands. If
any remedy is open to the aggrieved employee at this point,
it can only be by way of a proceeding before the Federal
Court of Appeal to have the decision of the appeal board
reviewed.
It is against that decision of the Board that
this section 28 application is directed.
At the hearing, the applicant, who appeared
on his own behalf, made many attacks on the
Board's decision, most of which were answered
by the Court during the course of the argument.
His main attack, however, was that there had
not been any bona fide recommendation for his
release under section 31 of the Public Service
Employment Act, that he had been discharged
for disciplinary reasons and that he was, in
those circumstances, entitled to refer to adjudi
cation, under the Public Service Staff Relations
Act, a grievance with respect to his discharge.
Under the Public Service Staff Relations Act,
the jurisdiction of an adjudicator is limited both
by section 90 and section 91. A grievance may
not be referred to adjudication if it relates to a
matter in respect of which no grievance has
been presented under section 90 or to a matter
which does not fall within section 91.
Under section 90 a grievance may not be
presented if it relates to a matter in respect of
which an "administrative procedure for redress
is provided in or under an Act of Parliament".
Where a procedure is so provided under which
an employee's grievance may be redressed, the
aggrieved employee cannot resort to the griev
ance procedure under sections 90 and 91 of the
Public Service Staff Relations Act but must
submit his complaint to the authority which has,
under the appropriate statute, the power to deal
with it. An employee who is dissatisfied with
the decision of that authority may not file a
grievance under section 90 or 91 in respect of
that decision.
Under section 91(1) a grievance may not be
referred to adjudication unless it is a grievance
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
financial penalty,
Section 31(1) of the Public Service Employ
ment Act authorizes a deputy head to recom
mend to the Public Service Commission the
release of an employee whom he considers to be
incompetent or incapable. Section 31(3) pro
vides for a right of appeal from that recommen
dation to a board established by the Commis
sion and further provides that the decision of
that appeal board is binding on the Commission.
When a recommendation is made by a deputy
head under section 31(1), whatever be the real
motives that may have prompted him to make it,
no grievance may be filed with respect to that
recommendation under the Public Service Staff
Relations Act since section 31(3) provides for
an appeal from that recommendation to a board
which is the sole authority with the power of
deciding whether the recommendation is justi
fied. That board is the tribunal endowed by
Parliament with the power of deciding whether
there is a bona fide recommendation for release
on grounds of incompetence or incapability and
whether such recommendation should be acted
upon. It follows that once a board acting under
section 31(3) has decided that an employee is to
be released pursuant to the recommendation of
the deputy head, no grievance may be presented
or referred to adjudication with respect to that
decision. Furthermore, when the Public Service
Commission releases an employee following
such a decision of an appeal board, no grievance
can be presented or referred to adjudication
with respect to that release. The termination of
the employment of the employee in such a case
is the automatic result of the decision of the
appeal board which the Commission is, by stat
ute, bound to follow. A grievance presented
against the release of an employee by the Com
mission in those circumstances cannot be
referred to adjudication since it is not a griev
ance in respect of a matter covered by section
91(1).
For these reasons, I am of the view that the
Public Service Staff Relations Board was right
in reaching the conclusion that the grievance
presented by the applicant could not be referred
to adjudication. The applicant's only recourse
against the decision of the Appeal Board which
confirmed the recommendation of the Deputy
Minister was an application to this Court under
section 28 of the Federal Court Act. I must add,
however, that it does not necessarily follow
that, if such an application had been made and
had succeeded, the applicant would thereby
have acquired the right to refer his grievance to
adjudication.
I would, therefore, dismiss the application.
* * *
JAcKETT C.J. concurred.
* * *
UrnE 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.