A-20-80
The Queen, represented by the Treasury Board,
represented by the Attorney General of Canada
(Applicant)
v.
Luc Turgeon, represented by the Public Service
Alliance of Canada (Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, April 14, 1980.
Judicial review — Public Service — Application to review
decision of Adjudicator allowing a grievance against a second
suspension from employment — Suspension based on a crimi
nal conviction for conspiring to defraud Unemployment Insur
ance Fund — First suspension and dismissal (before criminal
prosecution) was challenged — First Adjudicator held dismis
sal was too severe a penalty and should be replaced by one
year's suspension — Whether principle of res judicata misap
plied by second Adjudicator — Whether entire case should
have been re-examined — Adjudicator properly held that new
penalty not to be imposed for offence already expiated by
respondent — No justification for respondent's suspension —
Decision surprising but no error in law — Application dis
missed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
APPLICATION for judicial review.
COUNSEL:
Robert F. Lee for applicant.
J. D. Richard, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicant is seeking the cancella
tion, pursuant to section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, of a decision
of an adjudicator pursuant to the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35.
Respondent has been employed since 1972 by
the Employment and Immigration Commission
(formerly the Unemployment Insurance Commis
sion). In September 1976, his employer suspended
him from his duties because he suspected him of
being part of a conspiracy to defraud the Commis
sion. After an investigation confirmed that his
suspicions were correct, the employer decided to
dismiss respondent as of March 18, 1977.
Respondent submitted two grievances in which
he challenged his suspension and dismissal. These
grievances were referred to adjudication. The
Adjudicator, Pierre-André Lachapelle, after con
cluding that respondent had in fact participated in
a fraud on the Unemployment Insurance Commis
sion, held that in the circumstances the dismissal
was nonetheless too severe a penalty and should be
replaced by a suspension of one year without pay.
Pursuant to this decision, which was handed down
on December 13, 1977, respondent was reinstated
in his duties.
A few months later, as the consequence of a
complaint filed against him arising out of the
events which led to his suspension, respondent was
found guilty of conspiring to defraud the Commis
sion and sentenced to two years' imprisonment. He
immediately appealed from this decision. This
appeal is still pending.
On June 21, 1979 the employer wrote respond
ent the following letter:
[TRANSLATION] We have been informed that on April 30,
1979 you were found guilty in a criminal court of conspiring
with other persons to defraud the Unemployment Insurance
Fund. This conviction carried a term of two years' imprison
ment, and you were in fact imprisoned on May 28 and released
on bail on June 12 pending an appeal from this conviction.
In these circumstances, we are placing you on indefinite
suspension until we know the outcome of your appeal, and the
said suspension will take effect on June 12, 1979. If your appeal
is dismissed, measures will then be taken to terminate your
employment with the Commission.
Respondent then submitted a grievance against
this new suspension. The case was referred to
adjudication and the Adjudicator allowed the
grievance. It is this decision which applicant is now
seeking to have cancelled.
The only objection which counsel for the appli
cant raised to the decision a quo is that it misap
plied the principle of the authority of res judicata.
Counsel for the applicant argued that respondent's
conviction was a new fact, which had not been
considered by the Adjudicator Lachapelle at the
time of the first adjudication; in such circum
stances, counsel for the applicant went on, the
second Adjudicator should, without contravening
the principle of the authority of res judicata (that
is, without contravening the authority of the deci
sion of the first Adjudicator) have re-examined the
entire case and determined what penalty ought to
be imposed on respondent.
In my view this argument is incorrect. It is quite
clear that respondent has already been penalized
for defrauding the Unemployment Insurance Com
mission. This matter is in the past, and the
Adjudicator properly held that a new penalty
could not be imposed on respondent for an offence
already expiated by him. What is new since the
first adjudication, and what led to the new suspen
sion of respondent, is that he has been subject to a
criminal conviction. The Adjudicator had to decide
whether this new fact justified the suspension of
respondent. The Adjudicator gave a negative reply
to this question. Although this reply surprises me,
I cannot say that it was unreasonable or vitiated
by any error of law.
I would accordingly dismiss the application.
* * *
RYAN J. concurred.
* * *
LE DAIN J. concurred.
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