T-10-78
Jacques Vachon (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, May 17
and June 12, 1979.
Public Service — Dismissal during extension of probation
ary period — Judgment for substantive relief sought as well as
declaration as to validity of termination of plaintiffs employ
ment — Plaintiff argued that Regulations under which exten
sion effected are ultra vires — Defendant claims that plaintiff
was discharged as penalty for breach of discipline — Public
Service Employment Act, R.S.C. 1970, c. P-32, s. 28(3) —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
100 — Public Service Employment Regulations, SOR/67-129,
s. 30(2).
Plaintiff seeks a declaration that his rejection from employ
ment in a position in the Department of National Health and
Welfare did not take place during his probationary period but
rather during a period when the probationary period was
extended. It is argued that the extension was ineffective
because it was made under the authority of section 30(2) of the
Public Service Employment Regulations which is ultra vires.
In addition to the declarations sought as to the validity of the
termination of the plaintiff's employment, plaintiff seeks a
judgment for substantive relief. The statement of defence raises
as an alternative that the plaintiff was not rejected on probation
but rather was discharged as a penalty for breach of discipline
or misconduct in accordance with the standards of discipline
established by the Treasury Board.
Held, the action is dismissed. It is established that section
30(2) of the Public Service Employment Regulations is ultra
vires. There was no authority to extend the plaintiff's period on
probation as was purportedly done, and accordingly, the pur
ported rejection by the deputy head under section 28(3) of the
Public Service Employment Act is null and void. It is also
established that an adjudicator must inquire into the genuine
nature of an employer's rejection of a probationary employee.
Despite the inclusion of a privative section (section 100) in the
Public Service Staff Relations Act, this Court has jurisdiction
to review the Adjudicator's decision. The finding which the
Adjudicator was called upon to make is exclusively one of fact.
The only justification for reversing that finding would be that it
was so unreasonable and contrary to the weight of evidence as
to be perverse. There was ample evidence before the Adjudica
tor to justify his finding that plaintiff was discharged for a
breach of discipline. Since there was evidence before the
Adjudicator which justified his assumption of jurisdiction, it
cannot be said that he was without jurisdiction and his rejection
of the plaintiff's grievance was conclusive.
Ouimet v. The Queen [1978] 1 F.C. 672, applied. Richard
v. P.S.S.R.B. [1978] 2 F.C. 344, distinguished.
ACTION.
COUNSEL:
J. D. Richard, Q.C. and L. Harnden for
plaintiff.
M. Kelen for defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By his statement of claim the
plaintiff seeks a declaration that his rejection from
employment in a position in the Department of
National Health and Welfare did not take place
during his probationary period but rather during a
period when that period was extended, which
extension was ineffective having been done under
the authority of section 30(2) of the Public Service
Employment Regulations [SOR/67-1291 which is
ultra vires.
More particularly the plaintiff claims as follows:
(a) A declaration that Section 30(2) of the Public Service
Employment Regulations is ultra vires;
(b) A declaration that the Defendant had no authority to
terminate the employment of the Plaintiff under the purported
authority of Section 28(3) of the Public Service Employment
Act or of Section 30(2) of the Public Service Employment
Regulations;
(c) A declaration that the purported termination of the Plain
tiff's employment by his Employer is null and void and of no
effect whatsoever and that the Plaintiff still retains his status as
an employee as if his employment had not been terminated;
At the outset of the trial the statement of claim
was amended, with the consent of counsel for Her
Majesty, by adding to the relief sought, paragraph
(d) which reads:
(d) Judgment in favour of the Plaintiff of monies sufficient to
compensate the Plaintiff for wages or salary and any other
benefits or privileges which he would have received if the
Employer had not unlawfully terminated the Plaintiff's
employment.
The plaintiff also moved to add a further para
graph to the prayer for relief, a claim for compen
sation for the "mental anguish, vexation, stress;
humiliation and loss of reputation resulting from
the wrongful termination of the Plaintiff's employ-
ment". If such amendment had been allowed it
would have necessarily resulted in an adjournment
of the trial to permit of discovery by the defendant
with respect thereto and accordingly the plaintiff
withdrew his request for such amendment.
Immediately prior to trial counsel for the parties
reached the following statement of agreed facts
upon the basis of which this action was tried:
Statement of Agreed Facts
The parties hereby agree that for the purposes of Trying this
action the following facts are not in dispute between them and
are relevant to the issues raised by the pleadings:
1. The Plaintiff resides in the Town of Aylmer in the Province
of Quebec.
2. On January 27, 1975, the Plaintiff was appointed to the
Federal Public Service as a senior researcher with the classifi
cation ED-EDS 2 in the Public Service Commission.
3. On February 2, 1976, as a result of a competition, the
Plaintiff was laterally transferred to the position of Consultant,
Family Planning Division, in the Department of National
Health and Welfare. His classification remained that of
ED-EDS 2.
4. The Plaintiff was considered to be on probation from Febru-
ary 2, 1976 until February 1, 1977. On January 27, 1977, an
agent of the Defendant wrote a letter to the Plaintiff stating
that the Plaintiff's probationary period was being extended for
an additional period of six months expiring on August 1, 1977.
The said letter stated that the decision to make such extension
was taken by virtue of section 30(2) of the Public Service
Employment Regulations. A copy of the said letter is hereto
attached and marked as Document "A".
5. On March 8, 1977, a letter was written by the Director
General, Personnel Administration Directorate of the Depart
ment of National Health and Welfare notifying the Plaintiff
that he had been rejected while on probation and that his last
day of work would be on the 8th day of April, 1977. A copy of
the said letter is attached and marked as Document "B".
6. The Plaintiff filed a grievance which, pursuant to the provi
sions of the Public Service Staff Relations Act, was referred to
adjudication under section 91(1)(b) thereof.
7. On the 25th day of July, 1977, the Plaintiff's grievance was
heard by Gaston Descôteaux, Board Member and Adjudicator
of the Public Service Staff Relations Board. A written decision
was rendered by him on July 30, 1977. The French version of
the decision is attached hereto as Document "C" and the
English version thereof is hereto attached as Document "D".
8. The parties hereby agree that this Statement of Agreed
Facts is not to be construed as affecting the right of either of
them to establish any relevant facts in addition to the facts
hereby agreed to.
I have not reproduced Document "A" which is
the letter referred to in paragraph 4 of the agreed
statement of facts because the significance and
content of that letter is accurately summarized in
the text of paragraph 4.
Neither have I reproduced the letter referred to
in paragraph 5 of the statement of facts as Docu
ment "B" because that letter is included in its
entirety in a decision of a member of the Public
Service Staff Relations Board which decision is
referred to in paragraph 7 of the statement of facts
the English version of that decision being Docu
ment "D" and I attach that document hereto as an
appendix.
In Ouimet v. The Queen [1978] 1 F.C. 672 the
plaintiff sought a declaration:
(1) that section 30(2) of the Public Service Employment
Regulations was ultra vires;
(2) that the defendant had no authority to terminate the
employment under the purported authority of section 28(3) of
the Public Service Employment Act, and
(3) that the purported termination of the plaintiff's employ
ment by his employer was null and void and of no effect
whatsoever and that the plaintiff still retains his status as an
employee as if his employment had not been terminated.
The claim for relief in this action coincides with
that in Ouimet v. The Queen with the exception
that, by the amendment granted, the present plain
tiff seeks compensation for the loss of wages and
other benefits he would have received had the
defendant not terminated the plaintiff's employ
ment.
By coincidence I was the judge who decided the
Ouimet case in the first instance.
It was held that section 30(2) of the Public
Service Employment Regulations is ultra vires for
the reasons therein expressed from which it fol
lowed that the declaratory relief sought by the
plaintiff was granted.
On appeal this decision was confirmed by the
unanimous decision of the Court of Appeal
[[1979] 1 F.C. 55] with the exception [at page 61]
that the concluding words: "and that the Plaintiff
still retains his status as an employee as if his
employment had not been terminated", appearing
in paragraph (c) of the claim for relief, were
deleted from the declaration granted by me to that
effect for the reasons expressed by the Chief Jus
tice speaking for the Court.
In the present action however, in addition to the
declarations sought as to the validity of the termi
nation of the plaintiff's employment, there is
sought a judgment for substantive relief. That
being so the declaration sought that the plaintiff
still retains his status as an employee is incompat
ible therewith. It seems to me that one or other
form of relief is susceptible of being granted but
not both.
If it should be found that the plaintiff's employ
ment had not been lawfully terminated then it
would follow that the plaintiff was entitled to
continue in his employment and to receive his
salary therefor. However to be entitled to receive
his salary the plaintiff must perform the duties of
his office or indicate his willingness to do so. I
have no doubt that the plaintiff was willing to
continue to discharge his duties in the manner he
considered to be preferable and that this was
known to his employer. The employer indubitably
did not accept the plaintiff's views as to the better
manner to perform the duties of the office but the
employer took effective steps to ensure that the
plaintiff did not perform the duties in any manner
whatsoever by denying him access to departmental
premises in the letter dated March 8, 1977 which
is Document "B" to the agreed statement of facts
as from the date of that letter.
Therefore the plaintiff's remedy would be for
damages. In my view whether he is entitled to
damages is the issue.
It was agreed that the question of liability
should first be decided. If it should be found that
there was no liability that would end the matter
subject to such finding being reversed on appeal in
which event the matter would be referred back to
find the quantum of damages. If it should be held
that the defendant is liable for damages the trial
would be then adjourned and evidence would be
adduced as to the quantum. Certain complexities
are present which made a reference under Rule
500 impracticable.
This was the course followed in The Queen
(P.E.I.) v. The Queen (Canada) [1976] 2 F.C. 712.
There is no question whatsoever, in the light of
the decision in Ouimet v. The Queen (supra), that
section 30(2) of the Public Service Employment
Regulations is ultra vires and that being so there
was no authority to extend the plaintiff's period on
probation as was purported to be done and accord
ingly the purported rejection of the plaintiff by the
deputy head under section 28(3) of the Public
Service Employment Act, R.S.C. 1970, c. P-32, is
null and void.
This conclusion does not resolve the matter
because the statement of defence raises as an
alternative that the plaintiff was not rejected on
probation but rather he was discharged as a penal
ty for breach of discipline or misconduct in accord
ance with the standards of discipline established by
the Treasury Board under the authority of section
7(1)(J) of the Financial Administration Act,
R.S.C. 1970, c. F-10.
Where a probationary employee ceases to be an
employee because of rejection for cause pursuant
to section 28(3) of the Public Service Employment
Act he has no right to refer the matter to
adjudication.
Of course he can go through the levels of
grievance.
Naturally the plaintiff began grievance proceed
ings which were pursued to the final level, that is
the Deputy Minister, who in this instance said in
part in a document entitled "Grievance Decision"
dated April 22, 1977:
I find that you were not discharged, but were properly rejected
for cause during your probationary period.
This is simply not so because the plaintiff was
not in a probationary period.
However where the grievance of an employee is
with respect to disciplinary action resulting in
discharge, section 91(1)(b) of the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, entitles
the employee to refer the grievance to adjudica
tion.
This the plaintiff did.
The matter was heard by an Adjudicator before
whom the plaintiff, as grievor, was represented by
counsel as was the employer.
Counsel for the grievor (the plaintiff herein)
maintained that the Adjudicator had jurisdiction
because the plaintiff had been discharged as a
penalty for breach of discipline. From the
Adjudicator's summation of the position taken by
counsel for the parties it would appear that counsel
for the employer limited his remarks exclusively to
the question of the Adjudicator's jurisdiction and
directed no argument to the merits. Because coun
sel for the employer would support the action by
the employer (that is rejection for cause on proba
tion) it is logical to assume that he contended that
the Adjudicator was without jurisdiction but the
Adjudicator did not bother to summarize the gist
of that contention as he did with respect to the
contention made on behalf of the grievor. The
Adjudicator did refer to decisions cited to him by
use of a personal surname and a citation which is
meaningless to me. Perhaps these are decisions of
Adjudicators and are identified as such but in
most instances the surnames alert me to the fact
that there have been appeals from the decisions to
the Federal Court which have been reported. The
decisions of the Adjudicators are not binding upon
me and are helpful only as to the validity and
persuasiveness of the reasoning by which the deci
sions were reached but if the Adjudicator is refer
ring to reported decisions of this Court or the
Supreme Court of Canada then in the future these
decisions should be identified by intelligible
citations.
After having stated that counsel advanced argu
ment before him the Adjudicator said:
It is not my intention here to go into a detailed study of the
question of an adjudicator's jurisdiction in cases involving an
employee's "forced departure" during his probationary period.
I wish only to state that I am of the opinion that an adjudicator
has jurisdiction to conduct an investigation aimed at determin
ing whether what is at issue is a rejection within the meaning of
section 28 of the Public Service Employment Act or a dis
charge for disciplinary reasons pursuant to section 91 of the
Public Service Staff Relations Act (see Morrison (168-2-3),
MacRae (168-2-97) and Nannayakkara (166-2-2812)). Fur
thermore, I am of the opinion that if the adjudicator concludes
that a discharge for disciplinary reasons is involved, he has
jurisdiction to decide whether or not the said discharge was
warranted.
In this extract quoted the Adjudicator expresses
two opinions:
(I) that an investigation can be conducted to ascertain if the
employee was rejected for cause or was discharged for discipli
nary reasons, and
(2) if the adjudicator concludes that "a discharge for discipli
nary reasons is involved," he has jurisdiction to determine if
that discharge was warranted.
The first opinion expressed is a well-founded
proposition settled by the Supreme Court of
Canada in Jacmain v. Attorney General of
Canada [1978] 2 S.C.R. 15, in the Court of
Appeal decision in the same matter Attorney Gen
eral of Canada v. P.S.S.R.B. [1977] 1 F.C. 91 at
96 and in Fardella v. The Queen [1974] 2 F.C.
465. I expect that the Adjudicator may have been
aware of these decisions because these are two of
the surnames which he mentioned as being
decisions.
The law laid down by those decisions was suc
cinctly stated by Heald J. in Richard v. P.S.S.R.B.
[1978] 2 F.C. 344 at page 347:
... an adjudicator fails to exercise his jurisdiction if he does not
first inquire into the genuine nature of the employer's action in
purporting to reject a probationary employee and that the
adjudicator is not bound by the employer's characterization of
his own actions.
In the preceding paragraph he had paraphrased
the decision in Cutter Laboratories International
v. Anti-dumping Tribunal [1976] 1 F.C. 446 hold
ing that:
... an adjudicator was entitled to inquire into the facts and
circumstances of a particular case sufficiently to enable that
adjudicator to determine whether, in fact, the employer's action
was a rejection for cause or a disciplinary discharge.
Mr. Justice Heald then pointed out that it is
necessary for an adjudicator:
... to have sufficient evidence adduced to enable him to answer
the question as to whether the purported rejection on probation
was in fact disciplinary action within the meaning of section
91(1)(b) so as to clothe him with jurisdiction under that
subsection.
I do not accept that the Richard case is author
ity for the proposition that an adjudicator's deci
sion as to whether he has jurisdiction in these
instances is a final decision and so the subject
matter of review by the Appeal Division under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, as counsel for the defendant
advanced it as being.
If an adjudicator declines to assume jurisdiction
then that decision is a final decision and subject to
review but conversely if he assumes jurisdiction
then it is his decision on the merits that is the final
decision which is subject to review under section
28 although the adjudicator's decision as to juris
diction may arise incidentally during the review of
the final decision.
Neither do I accept the second opinion
expressed by the Adjudicator that if he concludes
"a discharge for disciplinary reasons is involved"
then he has jurisdiction to determine if that dis
charge was warranted.
It is abundantly clear from the authorities men
tioned above that the adjudicator must inquire into
the genuine nature of an employer's rejection of a
probationary employee. This device of rejection on
probation cannot be used as a subterfuge to avoid
a discharge as a penalty for a breach of discipline.
The adjudicator must consider the facts objectively
and there must be sufficient evidence before him
to decide, as a question of fact, that what is
characterized as a rejection on probation was in
fact disciplinary action within the meaning of sec
tion 91(1) (b) thereby conferring jurisdiction upon
the adjudicator. The adjudicator cannot merely
conclude "a discharge for disciplinary reasons was
involved" and thereby clothe himself with jurisdic
tion. He must first find that the genuine reason for
the employee's dismissal was disciplinary. Further
more that finding must be based on "sufficient
evidence adduced". Whether there was sufficient
evidence before the Adjudicator in this matter is
the paramount issue in this action.
Section 100 of the Public Service Staff Rela
tions Act reads:
100. (1) Except as provided in this Act, every order, award,
direction, decision, declaration or ruling of the Board, an
arbitrator appointed under section 62 or an adjudicator is final
and shall not be questioned or reviewed in any court.
(2) No order shall be made or process entered, and no
proceedings shall be taken in any court, whether by way of
injunction, certiorari, prohibition, quo warranto or otherwise,
to question, review, prohibit or restrain the Board, an arbitrator
appointed under section 62 or an adjudicator in any of its or his
proceedings.
Counsel for the defendant contended that, based
upon the privative section above quoted, there is no
jurisdiction in this Court to question or review the
Adjudicator's decision.
It has been suggested that legislatures are not
competent to prevent supervision by superior
courts of the exercise of jurisdiction by tribunals (a
suggestion with merit) but the more prevalent and
generally accepted rationale is that no Parliament
in its right mind would intend to prevent review
and that it was not intended to confer unbridled
power upon tribunals by freeing them from the
traditional restraint of review by the courts.
In Toronto Newspaper Guild v. Globe Printing
Co. [1953] 2 S.C.R. 18 Rand J. said at page 28:
In the absence of a clear expression to the contrary, we are
bound by the principle that ultra vires action is a matter for the
superior courts: the statute is enacted on that assumption. Any
other view would mean that the legislature intended to author
ize the tribunal to act as it pleased, subject only to legislative
supervision: but that is within neither our theory of legislation
nor the provisions of our constitution. The acquiescence of the
legislatures, particularly during the past fifty years, in the
rejection by the courts of such a view confirms the interpreta
tion which has consistently been given to the privative clause.
Thus a privative clause is effectively read out of
the statute as far as jurisdictional issues are con
cerned. The authorities are numerous to the effect
that privative clauses in various forms will not
prevent the review or the quashing of jurisdictional
error.
It is axiomatic that a tribunal cannot bestow
jurisdiction upon itself by a wrong decision on a
point collateral to the merits of the case upon
which the limit to its jurisdiction depends. That is
a far different thing from saying that a wrong
decision if made within the tribunal jurisdiction
cannot be final but the tribunal cannot by a wrong
decision give itself jurisdiction. That decision is
subject to review despite any privative clause.
In my view the locus classicus is the judgment
of Doull J. in Re Lunenburg Sea Products Ltd.
[1947] 3 D.L.R. 195 speaking for the Nova Scotia
Court of Appeal. It was held that persons to whom
the Wartime Labour Relations Regulations were
sought to be applied were not "employees" and the
Board had no jurisdiction. The Board wrongly
decided that they were "employees" when in law
they were joint venturers and this despite a weird
and wonderful privative clause providing, amongst
other things, that if a question arose as to whether
a person is an employee it shall be decided by the
Board and its decision shall be final and conclusive
not only for the purposes of the Regulations but
also in any legal proceedings and if that question
had not been decided by the Board the Court was
to refer the question to the Board and defer its
decision until the decision of the Board was
received. That was a most extraordinary provision
making the decision of an inferior Board composed
of laymen binding upon all courts in Canada in
which the question might arise.
For these reasons the decision of the Adjudica
tor in this instance that the plaintiff was not
rejected on probation but that he was discharged
as a penalty for breach of discipline is the proper
subject of review despite the privative clause.
The finding which the Adjudicator was called
upon to make is exclusively one of fact. The only
justification for reversing that finding would be
that it was so unreasonable and contrary to the
weight of evidence as to be perverse. That is not
the circumstance in this instance. There was ample
evidence before the Adjudicator to justify his find
ing, as he did, that the plaintiff was discharged for
a breach of discipline.
Counsel for the defendant also contended that
the plaintiff was estopped by his conduct or as a
matter of res judicata from contending that his
rejection on probation was a nullity. That question
was not decided by the Adjudicator. What the
Adjudicator decided was that the plaintiff was
discharged for a breach of discipline (as was con
tended by the plaintiff before the Adjudicator) but
he went on to decide that the discharge was justi
fied and dismissed the plaintiff's grievance. Nei
ther do I construe the plaintiff as making any
representations which caused the defendant to be
misguided thereby to her detriment.
In my view there was evidence before the
Adjudicator which justified his assumption of
jurisdiction. That being so it cannot be said that he
was without jurisdiction and his rejection of the
plaintiff's grievance was conclusive.
In view of the conclusion I have reached I can
see no useful purpose in granting the declaratory
relief sought in paragraphs (a) and (b) of the
claim for relief to which he would be entitled
simply because no concrete results would flow
from that declaration for the plaintiff's benefit.
Similarly the declarations sought in paragraph (c)
cannot be granted because, while his employment
was not terminated by rejection on probation, the
plaintiff's employment was terminated by dis
charge as was found by the Adjudicator whose
decision I do not question for the reasons I have
given.
Accordingly the plaintiff's action is dismissed
with costs to the defendant if demanded.
APPENDIX
Document "D"
File No: 166-2-3106
PUBLIC SERVICE STAFF RELATIONS ACT
BEFORE THE PUBLIC SERVICE STAFF RELATIONS BOARD
BETWEEN:
JACQUES VACHON,
grievor,
AND:
TREASURY BOARD
(Department of National Health and
Welfare)
employer.
DECISION
Before: Gaston Descôteaux, Board Member and Adjudicator.
For the grievor: Evelyne Henry, Public Service Alliance of
Canada.
For the employer: Gilbert Patrice, counsel.
Heard at Ottawa on July 25, 1977.
DECISION
Mr. Jacques Vachon was employed by the federal govern
ment and occupied a position in the Social Service Programs
Branch (Family Planning Division) of the Department of Na
tional Health and Welfare. In the present grievance, Mr.
Vachon complains that he was dismissed by his employer
without just cause and therefore requests that he be reinstated
in his position and that he be granted all the benefits associated
therewith.
At the hearing, the employer was represented by Mr. Gilbert
Patrice and the grievor by Miss Evelyne Henry of the Public
Service Alliance of Canada.
I The facts
Mr. Vachon's appointment to his position with the Depart
ment of National Health and Welfare took effect on February
2, 1976. His probationary period, which was originally to end
on February 2, 1977, was extended for six months, that is until
the beginning of August. On March 8, 1977, Mr. Vachon
received the following letter (Exhibit U-1)
PERSONAL AND CONFIDENTIAL
March 8, 1977.
M. Jacques Vachon,
1289 Grande Allée,
Aylmer, Québec
Dear Mr. Vachon:
On behalf of the Deputy . Minister and by the authority
granted him under Section 28(3) of the Public Service Employ
ment Act, this is to inform you that you are being rejected
during your probationary period. The effective date of your
rejection will be April 8, 1977, at close of work.
You were appointed to the position of Education Consultant,
Family Planning Division, on February 2, 1976, and your
probationary period was extended from February 1, 1977, to
August 1, 1977.
You have already been advised by the Assistant Deputy
Minister, Social Service Programs Branch, of the reasons for
this action. Firstly, you appeared without prior authority on a
Channel 24 television program aired on February 16, 1977.
Secondly, you were clearly identified in your present capacity
and the views you expressed in the course of that telecast on the
Family Planning Program of our Department were, in the
opinion of departmental management, in direct conflict with
the publicly stated objectives of the Program and your duties
therein. Consequently, it is the judgment of management that
these actions render it impossible for you to discharge ade
quately the duties of your position.
In accordance with Section 28(5) of the Public Service
Employment Act, your name shall be placed by the Commis
sion on such eligible list and in such place thereon as in the
opinion of the Commission is commensurate with your
qualifications.
From now until April 8th, you will not be required to
perform any duties associated with your present position and, in
consequence of that, you are hereby instructed not to enter the
departmental premises. During this same period should you
need to get in touch with the Department, you may contact
either Mr. Dean Moodie, Executive Assistant to the Deputy
Minister, Social Service Programs Branch, 992-3864, or Mr. L.
Brazeau, Personnel Adviser, Welfare, 996-8331.
I understand that you have already advised the Assistant
Deputy Minister, Social Service Programs Branch, that you
have retained only personal memoranda or correspondence and
that you do not have any government property in your
possession.
BY HAND
P. D. Doucet,
Director General,
Personnel Administration Directorate.
On receipt of the above letter, Mr. Vachon filed the griev
ance that is the subject of this issue. The employer's reply at
the final level of the grievance procedure reads as follows:
GRIEVANCE DECISION
Jacques Vachon 18-03-77
Social Service Program Family Planning Ottawa
Final Level Deputy Minister
Mr. Bruce Rawson
I have carefully considered your grievance received March 18,
1977 concerning your rejection on probation and the represen
tations made by yourself and your representatives during the
recent grievance meeting.
I find that you were not discharged, but were properly rejected
for cause during your probationary period. The reasons for your
rejection were clearly set out in the letter of rejection dated
March 8, 1977. [Emphasis added.]
Signature of Step Officer
Bruce Rawson
Date
April 22, 1977
II Position of the parties
Miss Henry maintained that I had jurisdiction to decide the
present case, since the measure taken by the employer against
Mr. Vachon constituted a discharge and was therefore of a
disciplinary nature; she referred in particular to the Nanayak-
kara case (166-2-2812). Miss Henry also alleged that there
were no valid reasons for Mr. Vachon's discharge. Mr. Patrice,
on the other hand, considered only the question of my jurisdic
tion and cited several decisions in this connection: McCarthy
(166-2-2238 and FC No A-465-76, November 22, 1976), Far -
della (166-2-734), Richard (166-2-2786) and Jacmain ([1971]
F.C. 91 and in particular, p. 96 and pp. 98 to 100). Mr. Patrice
did not call any witnesses and had no arguments to present with
respect to the merits of the present case.
It is not my intention here to go into a detailed study of the
question of an adjudicator's jurisdiction in cases involving an
employee's "forced departure" during his probationary period.
I wish only to state that I am of the opinion that an adjudicator
has jurisdiction to conduct an investigation aimed at determin
ing whether what is at issue is a rejection within the meaning of
section 28 of the Public Service Employment Act or a dis
charge for disciplinary reasons pursuant to section 91 of the
Public Service Staff Relations Act (see Morrison (168-2-3),
MacRae (168-2-97) and Nannayakkara (168-2-2812). Fur
thermore, 1 am of the opinion that if the adjudicator concludes
that a discharge for disciplinary reasons is involved, he has
jurisdiction to decide whether or not the said discharge was
warranted.
III Decision with reasons
In my opinion, the measure taken by the employer Mr.
Vachon is of a disciplinary nature; this is clear from the third
paragraph on page 1 of the letter from Mr. Doucet dated
March 8, 1977 and the first paragraph on page 2 of the same
letter. Moreover, in his reply at the final level, Mr. Rawson
referred to the reasons stated in the above-mentioned para
graphs. Consequently, it is my opinion that I have jurisdiction
pursuant to section 91 of the Public Service Staff Relations
Act.
The second question on which I must now rule, bears on the
very essence of the dispute; whether the disciplinary action
taken by the employer was warranted.
The employer charges Mr. Vachon with having appeared on
a television program without authorization and having
expressed on that occasion views that were in direct conflict
with the official objectives of the Department's Family Plan
ning Program and with his own duties within the Program.
Mr. Vachon was transferred from the Public Service Com
mission to the Department of National Health and Welfare at
his own request. In the latter department, he was appointed to
what is known as the Resource Centre of the Family Planning
Division. Mr. Vachon's description of his duties as an EDS-2
can be summarized as follows: -
(1) to distribute information on family planning and sex
education as requested by members of the public;
(2) to plan and direct all activities [in] relation to new
information programs;
(3) to act as an adviser on programs sponsored by the
Department;
(4) to answer correspondence from the public concerning
information for which his subordinate was not responsible.
Mr. Vachon was invited to appear on Pile et face, a program
telecast on UHF Channel 24; it is an educational program
shown late Wednesday evenings throughout the province of
Ontario. He was asked to appear on the program during a
telephone call to his office but the invitation was extended to
him as a private individual and not as a representative of the
Department. The program was recorded on February 7, 1977,
while Mr. Vachon was on vacation leave, and was telecast
twice, on February 16 and June 29, 1977. During the program,
which was hosted by a moderator, Mr. Vachon and another
guest were asked to give their opinions on sex education and
family planning.
In his testimony, Mr. Vachon stated that the comments he
made on the program fell into three categories:
(1) the denial of certain points raised by the other guest
which constituted false accusations against the Department;
(2) his own comments on the Department's sex education
program and on certain practices adopted by the Department
for the distribution of information: he spoke of the paucity of
research in the Department and deplored the quality of the
information, especially with respect to natural methods;
(3) general statements of a moral or philosophical nature.
On the basis of the evidence adduced, Mr. Vachon's correc
tion of a statement made by the other guest on the program
appears to be of minimal consequence, given the tenor of his
own statements as a whole.
Moreover, some of his comments, which can be classified
under (2) and (3) above, constitute without a doubt direct
criticism of the policy or the official objectives of the Depart
ment; they are in direct conflict with the said policy or objec
tives and with Mr. Vachon's duties as well. Two statements in
particular leap to our attention—the first to the effect that
Canadians are on their way to committing collective moral
suicide and the second, following a remark that Canada had
donated one million dollars to India for research on family
planning, questioning whether the federal government would be
willing to do as much for Canadians.
On the basis of Mr. Vachon's explanations of the two
statements, we may regard the latter as being of a serious
nature and as constituting a breach of his duties as a public
servant. There is no doubt that this breach warranted the
imposition of a penalty and, given the circumstances, I do not
feel that the penalty imposed by the employer should be
mitigated.
Needless to say, any employee, including a public servant, is
entitled to hold personal opinions; further, he undoubtedly has
the right to express them at the proper time and place and in a
judicious manner, in the course of performing his duties, in so
far as the interests of his employer allow. In the present case,
however, it appears that Mr. Vachon was in basic disagreement
with certain policies, objectives and practices of the Depart
ment. From time to time he voiced his disagreement in no
uncertain terms, to say the least, at his place of work and,
according to the overall evidence, his views conflicted unduly
with departmental policy on family planning and sex education.
Furthermore, on the basis of the evidence submitted before me,
it appears that Mr. Vachon's statements during the telecast
were in actual fact a public expression of his dissatisfaction.
It should be pointed out that Mr. Vachon had been working
for the Department for approximately thirteen months at the
time of the first telecast and was still on probation.
For all of the foregoing reasons, Mr. Vachon's grievance is
dismissed.
For the Board,
Gaston DesCôteaux
Board Member and
Adjudicator.
OTTAWA, July 30, 1977.
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