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T-328-80
Attorney General of Canada (Applicant) v.
Larry A. Roine and the Public Service Staff Rela tions Board and Barbara J. Robb (Respondents)
Trial Division, Mahoney J.—Ottawa, February 1 and 19, 1980.
Prerogative writs — Prohibition — Labour relations — Application to prohibit Adjudicator from considering a griev ance referred to adjudication — Postal clerk incurred shortage of money at wicket — No suggestion of dishonesty — Appli cable job description stated errors are responsibility of employee — Whether Adjudicator has jurisdiction to adjudi cate under s. 91(1) of Public Service Staff Relations Act — Application dismissed on ground that Adjudicator had juris diction to hear grievance because it related to "disciplinary action resulting in ... financial penalty" — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 91(1).
Attorney General of Canada v. Grégoire [1978] 2 F.C. 11, followed.
APPLICATION. COUNSEL:
W. L. Nisbet, Q.C. and H. Newman for applicant.
J. E. McCormick for respondents Larry A. Roine and Public Service Staff Relations Board.
T. A. McDougall, Q.C. and J. West for respondent Barbara J. Robb.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Public Service Staff Relations Board, Ottawa, for respondents Larry A. Roine and Public Service Staff Relations Board.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent Barbara J. Robb.
The following are the reasons for judgment rendered in English by
MAHONEY J.: The Attorney General seeks a writ of prohibition, prohibiting the respondent Roine, Adjudicator and member of the respondent Board, from considering and rendering a decision
on a grievance referred for adjudication by the respondent Robb, a wicket clerk employed by the Post Office Department. The evidence consists entirely of the affidavit of Harry A. Newman, counsel for the Treasury Board at the adjudication hearing and exhibits thereto.
As a result of a financial transaction at her wicket, Robb incurred a $300 shortage. There is no suggestion of dishonesty on her part. The appli cable job description stated "errors in financial transactions are the responsibility of the employee". She was approached by her superiors who indicated that, if she did not make it up, the $300 would be deducted from her wages. Prior to disposition of the grievance, Robb paid the $300. No authorization had been made under subsection 95(1) of the Financial Administration Act.' Her grievance was denied at the final level of the grievance process and she referred it to adjudica tion under subsection 91(1) of the Public Service Staff Relations Act. 2
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 grievance seeks a determination that, in the particular circumstances, the shortage was man- agement's responsibility and that it, not she, should pay it.
At the commencement of the hearing, counsel for the Treasury Board objected to the Board's jurisdiction on the grounds that the grievance related to neither the interpretation or application of a provision of the collective agreement nor to
' R.S.C. 1970, c. F-10.
95. (1) Where, in the opinion of the Minister of Justice, any person is indebted to Her Majesty in right of Canada in any specific sum of money, the Treasury Board may author ize the Receiver General to retain by way of deduction or set-off the amount of any such indebtedness out of any sum of money that may be due or payable by Her Majesty in right of Canada to such person.
2 R.S.C. 1970, c. P-35.
disciplinary action resulting in a financial penalty. The other circumstances envisaged by subsection 91(1) are plainly not in play. By agreement, that objection was dealt with as a preliminary matter and a decision rendered prior to the Adjudicator hearing evidence or submissions on the merits. The Adjudicator ruled that he did have jurisdiction, under paragraph 91(1) (a), to consider the matter of liability for the shortage; hence this application.
The collective agreement provided expressly that Robb was entitled to be paid at a specified rate of pay for the hours worked by her. The Adjudicator held that the implications of her having paid the shortage rather than suffer deduction from her pay was immaterial to the issue of jurisdiction, what ever its relevance to the merits. That fact certainly distinguishes this case from that considered by Grant D.J. in Attorney General of Canada v. Brent, 3 where subsection 95(1) of the Financial Administration Act had, in fact, been applied.
In determining that he had jurisdiction under paragraph 91(1)(a), the Adjudicator relied on Re Milk & Bread Drivers, Local 647, and Borden Co. Ltd. 4 That involved a route salesman who had lost, apparently by theft, a number of tickets, exchangeable for his employer's products, for the loss of which, as an express condition of employ ment, he was financially responsible. It was held:
In the board's view, the grievance, though not specifically so stating, does imply that the company was in breach of the collective agreement in not paying him his full wages in accord ance with appendix "A" to the collective agreement, and consequently this board has jurisdiction to determine whether the company was justified in making the pay deduction which it did.
In view of the decision of the Federal Court of Appeal in Attorney General of Canada v. Grégoire, 5 I do not find it necessary to express an opinion on the validity of that conclusion.
3 [1980] 1 F.C. 833.
4 (1966) 16 L.A.C. 380 at 381.
5 [1978] 2 F.C. 11.
The Grégoire judgment is a difficult one to apply. In rendering it, Jackett C.J. observed [at page 12]:
Owing to the paucity of material on which this section 28 application is based, it is important to emphasize, at the outset, that, if that material does not establish that the Adjudicator did not have jurisdiction, the section 28 application must be dismissed.
The facts gleaned from the paucity of material are, nevertheless, more than superficially similar to those in this case. There, a postal clerk issued a money order for a $150.36 cheque that was not honoured. He had failed to refer the cheque to a superior before accepting it. That requirement, the judgment says [at page 12]:
... was apparently justified before the Adjudicator on the basis of "requirements set forth in the bench-mark position descrip tion" ....
The Adjudicator held that he had jurisdiction under paragraph 91(1)(b) because the grievance arising out of the requirement that he pay the Department the $150.36 was in respect of "disci- plinary action resulting in ... financial penalty". The section 28 application was dismissed.
Perhaps that result was arrived at only because of the paucity of material before the Court of Appeal. It remains, however, a decision binding on me. It is a decision that the recovery from a postal clerk of an amount lost in a financial transaction falls within paragraph 91(1) (b) of the Public Ser vice Staff Relations Act.
ORDER
The application is dismissed. The respondent Robb is entitled to her costs.
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