A-623-76
Arthur J. Stewart (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, June 10, 1977.
Judicial review — Public Service—Application to set aside
decision of Public Service Staff Relations Board — Whether
error of law — Sufficient conduct for disciplinary action —
Whether a direct relationship between what employee had done
and either direct impairment of usefulness or action detrimen
tal to activity while employed only sufficient cause — Federal
Court Act, s. 28 — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, s. 23 — Canadian Bill of Rights, S.C. 1960, c.
44.
The applicant, an employee in the Public Service, had been
suspended for publicly criticizing the Minister and administra
tion of his Department in a newspaper. He now applies for
judicial review of a decision of the Public Service Staff Rela
tions Board which upheld the arbitrator's decision which
upheld the applicant's suspension by the Deputy Minister of the
Department on the ground that the decision was based on an
error of law. It was argued that misconduct justifying discipli
nary action of an employee, whether in the public or private
sector, could only be found on evidence establishing a direct
relationship between what the employee had done and either an
impairment of his usefulness as an employee or some other
action detrimental to the activity in which he was employed and
that when the adjudicator found such misconduct without first
making a supportable finding of such a relationship, the finding
was based on an error of law.
Held, the application is dismissed. Where there is a group of
employees, working as a unit, there must be prima facie
direction, which involves a directing mind to which members of
the unit must submit, as far as their work is concerned, for
otherwise there can be no coherent effort by the group but only
chaos. Where an important member of such a unit challenges
the legally established leader of the unit, prima facie, it will
impair the working of the unit; and evidence of such a chal
lenge gives rise to a factual presumption of misconduct. In so
far as the Canadian Bill of Rights protects a citizen's right of
free speech, it is not impaired by a restriction voluntarily
accepted by entering on an office or entering into a contract of
employment.
APPLICATION for judicial review.
COUNSEL:
John P. Nelligan, Q.C., for applicant.
A. M. Garneau and L. S. Holland for
respondent.
SOLICITORS:
Nelligan, Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Public Service Staff
Relations Board respecting a reference under sec
tion 23 of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, which, at the relevant time,
read, in part:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the Arbitra
tion 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 ....
Reading section 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, with section 23 of
the Public Service Staff Relations Act, it appears
that the question for this Court, in this case, is
whether the decision of the Board should be set
aside because it arose from an error of law that
resulted in the Board not finding that the decision
referred to it, which was a decision of an adjudica
tor, was wrong by reason of an error of law. In
effect, therefore, the question is whether the appli
cant has demonstrated that the adjudicator's deci
sion was wrong as a result of an error of law.
The only attack made on the adjudicator's deci
sion was, in effect, that he erred in law in uphold
ing the applicant's suspension by the Deputy Min
ister of the Department of the Federal
Government in which he was employed as a public
servant by way of discipline for publishing in a
newspaper a written criticism of the administra
tion of the Department and of its Minister.
In substance, I agree with the reasons given by
the adjudicator and the Board and I do not think
that it is, strictly speaking, necessary to add more.
However, having regard to the importance of the
matter and out of deference to the unusually able
argument of counsel, I propose to state as succinct
ly as possible my reasons on the principal points
involved.
Counsel for the applicant submitted, as I under
stood him, that misconduct justifying disciplinary
action of an employee, whether in the public or
private sector, could only be found on evidence
establishing a direct relationship between what the
employee had done and either an impairment of
his usefulness as an employee or some other action
detrimental to the activity in which he was
employed. He took the position, as I understood
him, that, when he found such misconduct without
first making a supportable finding of such a rela
tionship, the adjudicator's finding was based on an
error of law.
I am not persuaded that there is any such legal
condition precedent to a finding of misconduct.
There is such an infinite variety of situations in
which the question as to whether there has been
misconduct by an employee may arise that, as it
seems to me on the best consideration that I have
so far been able to give to the matter, a fact finder
can only be said to have erred in law (assuming the
absence of specific contractual or statutory rules of
conduct) when it can be said that, having regard to
the information before him, his finding of miscon
duct as a fact was one that could not have been
made reasonably.
In any event, and without committing myself to
that proposition, I have no doubt that, on the facts
as they appeared to the adjudicator, he had an
adequate basis for a finding of misconduct as a
fact. In my view, that part of his reasons that
reads:
... most employees understand full well that public denuncia
tion of their leaders or superiors is incompatible with the
employment relationship, will be regarded as "misconduct" and
will not be tolerated very long by any employer, whether the
employer be a company, a trade union or a government.
is a reasonable view and was obviously applicable
to the material before the adjudicator.
Having regard to counsel's emphasis on the need
for proof of actual impairment or detriment, I may
say that, in my view, where there is a group of
employees working as a unit, there must prima
facie be direction, which involves a directing mind
to which the members of the unit must, as far as
their work is concerned, submit, for, otherwise,
there can be no coherent effort by the group but
only chaos. It follows, that, where an important
member of such a unit challenges the legally estab
lished leader of the unit, prima facie it will impair
the working of the unit; and evidence of such a
challenge gives rise to a factual presumption of
misconduct.
Counsel for the applicant made much of the fact
that the applicant was the senior officer of the
union that was the bargaining agent for his bar
gaining unit. There was, however, as I understand
it, a finding of fact that what had occurred was not
done in the course of his activities on behalf of the
union as such bargaining agent; and the question
as to which interest would prevail in the case of a
conflict between something done that was at one
and the same time
(a) prima facie misconduct as a public servant,
and
(b) conduct in the course of carrying out the
public servant's duties as an officer of the union
acting as bargaining agent,
does not arise.
In so far as the applicant based his case on the
Canadian Bill of Rights, I do not appreciate it. In
so far as the Canadian Bill of Rights protects a
citizen's right of free speech, in my view, it is not
impaired by a restriction voluntarily accepted by
entering on an office or entering into a contract of
employment.
In my view, the section 28 application must be
dismissed.
* * *
PRATTE J. concurred.
* * *
LE DAIN 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.