A-495-79
Jacques Vachon (Appellant) (Plaintiff)
v.
The Queen in right of Canada, as represented by
the Deputy Minister of the Department of Nation
al Health and Welfare (Respondent) (Defendant)
Court of Appeal, Heald, Le Damn JJ. and Kerr
D.J.—Ottawa, September 10 and November 10,
1981.
Public Service — Appeal from trial judgment — Appel
lant's probationary period was extended and he was subse
quently rejected while on probation for having publicly
expressed views that directly conflicted with departmental
policies — Adjudicator decided that appellant had been dis
missed for disciplinary reasons and that therefore he possessed
jurisdiction under s. 91(1)(b) of the Public Service Staff Rela
tions Act to determine whether or not the grievor's discharge
was justified — Adjudicator held that penalty imposed not
excessive — Trial Judge held that the purported rejection of
the appellant while on probation was null and void, but that
there was ample evidence before the Adjudicator to support his
findings — Appellant contends that Trial Judge erred in
failing to find that the grievance was a nullity since he found
that the rejection for cause was a nullity — Whether the
Adjudicator's decision is conclusive of the issue of whether the
appellant's employment was validly terminated — Appeal
dismissed — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 28(3),(5) — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, s. 91(1)(b) — Public Service Employment
Regulations, SOR/67-129, s. 30(2).
Appeal from a judgment of the Trial Division dismissing the
appellant's action against the respondent. The appellant's pro
bationary period was extended and he was subsequently reject
ed while on probation pursuant to subsection 28(3) of the
Public Service Employment Act. The reasons given for his
dismissal were that the appellant appeared without prior au
thority on a television show, was identified in his present
capacity and expressed views that directly conflicted with
departmental objectives. The appellant filed a grievance which
was referred to adjudication pursuant to paragraph 91(1)(b) of
the Public Service Staff Relations Act. The Adjudicator decid
ed that the appellant's employment had been terminated for
disciplinary reasons and that accordingly he possessed jurisdic
tion under section 91 to determine whether or not the grievor's
discharge was justified. The Adjudicator decided that the
appellant had committed a serious breach of his duties warrant
ing the imposition of a penalty and that under the circum
stances, the penalty imposed, i.e. discharge, was not excessive.
The appellant then commenced an action in the Trial Division
asking for a declaration that subsection 30(2) of the Public
Service Employment Regulations is ultra vires; that the
respondent had no authority to terminate the appellant's
employment under subsection 28(3) of the Public Service
Employment Act or subsection 30(2) of the Public Service
Employment Regulations; and that the purported termination
was null and void. The Trial Judge held that there had been no
authority to extend the appellant's probationary period since
subsection 30(2) of the Public Service Employment Regula
tions was ultra vires. Accordingly, the purported rejection of
the appellant on probation was null and void. The Trial Judge
concluded, however, that there was ample evidence before the
Adjudicator to justify his finding that the appellant was dis
charged for a breach of discipline. The appellant submits that
the Trial Judge erred in failing to find that the grievance was a
nullity and not referable to adjudication and in finding that the
decision of the Adjudicator precluded the appellant's claim for
damages. The first submission is based on the supposition that
since the rejection for cause was a nullity, the grievance arising
therefrom was also a nullity. The issue is whether the decision
of the Adjudicator that the appellant was discharged for disci
plinary reasons and that his discharge was justified is conclu
sive of the essential issue raised by the appellant's action for
declaratory relief and damages—namely, whether his employ
ment was validly terminated.
Held, the appeal is dismissed. The question whether the
Adjudicator's decision is to be regarded as conclusive of the
essential issue raised by the appellant's action is to be resolved
not on the basis of the nullity of the rejection, but on a review
of the Adjudicator's decision for jurisdictional error. An
adjudicator has jurisdiction by reason of paragraph 91(1)(b) of
the Public Service Staff Relations Act to inquire whether what
purports to be a rejection for cause during a probationary
period is in substance a disciplinary discharge. It is not jurisdic
tional error per se to conclude, at least at the instance of the
employee, that a purported termination of employment in the
form of rejection is in substance a disciplinary discharge. The
Court should ask whether there is substantial evidence for
decisions of fact and a rational basis for decisions of law, or
mixed decisions of fact and law. The reasons given for the
purported rejection afforded substantial evidence and a rational
basis for the Adjudicator's conclusion. The Adjudicator's deci
sion was made within jurisdiction.
Per Heald J. dissenting: The submission that the grievance
was a nullity because the rejection for cause was a nullity is
well founded since it is supported by the relevant jurisprudence.
It is clear that the respondent purported to reject for cause and
not to dismiss. To allow the employer, after the fact, and in the
face of clear and unequivocal words in the rejection letter, to
somehow convert what was clearly intended at the time to be a
rejection for cause into a dismissal would distort the applicable
statutory provisions and result in an injustice to the appellant.
There can be no doubt about the validity of the proposition that
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 an
adjudicator is not bound by the employer's characterization of
his own actions, but this principle can only apply in cases where
the purported rejection for cause actually occurred during the
probationary period. The Trial Judge was in error in holding
that the Adjudicator had jurisdiction pursuant to paragraph
91(1)(b) of the Public Service Staff Relations Act.
Jacmain v. The Attorney General of Canada [1978] 2
S.C.R. 15, followed. Wright v. Public Service Staff Rela
tions Board [1973] F.C. 765, distinguished. R. v. Ouimet
[1979] 1 F.C. 55, distinguished. Films v. The Queen
[1979] 2 S.C.R. 1148, distinguished. Barnard v. National
Dock Labour Board [1953] 2 Q.B. 18, distinguished.
Fardella v. The Queen [1974] 2 F.C. 465, distinguished.
Richard v. Public Service Staff Relations Board [1978] 2
F.C. 344, distinguished. Cutter Laboratories International
v. Anti-dumping Tribunal [1976] 1 F.C. 446, distin
guished.
APPEAL.
COUNSEL:
John D. Richard, Q.C. and L. H. Harnden for
appellant (plaintiff).
W. L. Nisbet, Q.C. for respondent (defend-
ant).
SOLICITORS:
Gowling & Henderson, Ottawa, for appellant
(plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): This is an appeal from a
judgment of the Trial Division [[1980] 1 F.C. 212]
dismissing the appellant's action against the
respondent. The essential facts in this matter are
not in dispute and may be summarized as follows.
On January 27, 1975, the appellant was appointed
to the Federal Public Service as a senior research
er with the Public Service Commission. On Febru-
ary 2, 1976, as a result of a competition, he was
laterally transferred to the position of consultant,
Family Planning Division, in the Department of
National Health and Welfare with his classifica
tion remaining the same. The appellant was con
sidered to be on probation from February 2, 1976
until February 1, 1977. On January 27, 1977, the
appellant was advised that his probationary period
was being extended for an additional period of six
months expiring on August 1, 1977. On March 8,
1977, the appellant was advised by a letter signed
by one P. D. Doucet, Director General, Personnel
Administration Directorate, Department of Na
tional Health and Welfare, Canada, that he had
been rejected while on probation pursuant to sub
section 28(3) of the Public Service Employment
Act, R.S.C. 1970, c. P-32'. That letter reads as
follows (see A.B. pages 14 and 15):
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 the 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 Assistant
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
' Said subsection 28(3) reads as follows:
28....
(3) The deputy head may, at any time during the proba
tionary period, give notice to the employee and to the Com
mission that he intends to reject the employee for cause at
the end of such notice period as the Commission may estab
lish for any employee or class of employees and, unless the
Commission appoints the employee to another position in the
Public Service before the end of the notice period applicable
in the case of the employee, he ceases to be an employee at
the end of that period.
that you do not have any government property in your
possession.
P. D. Doucet,
Director General,
Personnel Administration Directorate.
The appellant filed a grievance which was
referred to adjudication pursuant to paragraph
91(1)(b) of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35 2 .
The Adjudicator decided that the appellant's
employment had been terminated for disciplinary
reasons and that, accordingly, he possessed juris
diction under section 91 (supra) to determine
whether or not the grievor's discharge was justi
fied. After reviewing the evidence, the Adjudicator
decided that the appellant had committed a serious
breach of his duties as a public servant warranting
the imposition of a penalty and that under the
circumstances, the penalty imposed by the employ
er, i.e. discharge, was not excessive. The essence of
the complaint against the appellant was that he
had appeared on a television programme where he
directly criticized the official policies of his
Department and expressed views directly conflict
ing with the policy or objectives of the Department
by whom he was employed.
The appellant then commenced an action in the
Trial Division asking for the following relief:
(a) a declaration that subsection 30(2) of the
Public Service Employment Regulations, SOR/
67-129, is ultra vires';
2 Said paragraph 91(1)(b) 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
(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.
3 Said section 30 of the Regulations at all relevant times read
as follows:
30. (1) The probationary period referred to in subsection
(1) of section 28 of the Act for an employee who comes
(Continued on next page)
(b) a declaration that the respondent had no
authority to terminate the employment of the
appellant under the purported authority of sub
section 28(3) of the Public Service Employment
Act or of subsection 30(2) of the Public Service
Employment Regulations;
(c) a declaration that the purported termination
of the appellant's employment was null and void
and of no effect whatsoever and that the appel
lant still retained his status as an employee as if
his employment had not been terminated; and
(d) judgment in favour of the appellant of
monies sufficient to compensate the appellant
for wages or salary and any other benefits or
privileges which he would have received if the
respondent had not unlawfully terminated the
appellant's employment.
The learned Trial Judge, following the Ouimet 4
decision in this Court held that there had been no
authority to extend the appellant's probationary
period since subsection 30(2) of the Public Service
Employment Regulations (supra) was ultra vires.
Accordingly, in his view, the purported rejection of
the appellant on probation was null and void.
Then, after reviewing the authorities in this Court
and in the Supreme Court of Canada, he conclud
ed that the Adjudicator must enquire into the
genuine nature of an employer's rejection of a
probationary employee since the device of rejection
on probation "cannot be used as a subterfuge to
avoid a discharge as a penalty for a breach of
discipline" [at page 220]. He then proceeded to
decide the question as to whether there was suffi
cient evidence before the Adjudicator upon which
he could determine whether or not the genuine
reason for dismissal of the employee was discipli
nary and concluded that there was ample evidence
before the Adjudicator to justify his finding that
(Continued from previous page)
within a class or group mentioned in Column I of Schedule A
is the period set out opposite that class or group in Column II
of the said Schedule.
(2) The deputy head may extend the probationary period
of an employee but the period of extension shall not exceed
the period for that employee determined pursuant to subsec
tion (1).
The Queen v. Ouimet [ 1979] 1 F.C. 55.
the appellant was discharged for a breach of disci
pline stating as follows [at pages 222-223]:
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
plaintiffs 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 decla
ration for the plaintiffs benefit. Similarly the declarations
sought in paragraph (c) cannot be granted because, while his
employment was not terminated by rejection on probation, the
plaintiffs employment was terminated by discharge as was
found by the Adjudicator whose decision I do not question for
the reasons I have given.
Accordingly the plaintiffs action is dismissed with costs to
the defendant if demanded.
The appellant alleges twofold error in the Trial
Division:
(a) it failed to find that the grievance filed by
the appellant was a nullity at law and not
referable to adjudication; and
(b) it found that the decision of the Adjudicator
precluded the appellant's claim for damages.
Dealing with the appellant's initial submission, it is
based on the supposition that since the rejection
for cause pursuant to subsection 28(3) of the Act
was a nullity, the grievance arising therefrom was
also a nullity and not referable to the Adjudicator.
In my view, this submission is well founded since
it is supported by the relevant jurisprudence. In
the Ouimet decision in this Court referred to
supra, Chief Justice Jackett dealt with a submis
sion which seems to be identical to the view held
here by the learned Trial Judge, namely, that even
if the purported rejection on probation was invalid,
nevertheless the rejection should be considered as a
dismissal effectively terminating the appellant's
employment. In rejecting this submission, Chief
Justice Jackett stated at pages 60 and 61 of the
report:
At least for the purpose of the statutes that govern the Public
Service, an ineffective attempt to reject under section 28 is not
the equivalent of a dismissal. (Compare Bell Canada v. Office
and Professional Employees' International Union [1974]
S.C.R. 335 at page 340, and Jacmain v. Attorney General of
Canada [1978] 2 S.C.R. 15.) Rejection is a part of a probation
ary system designed to choose permanent employees from those
who are employed on a trial basis, and any "cause" based on a
view as to the probability of the person developing into an
effective member of the "team" would be an acceptable basis
for it. Dismissal is quite a different action. It is ordinarily the
action whereby a permanent employee's employment status is
terminated otherwise than on retirement; and what would be
sufficient "cause" for dismissal would be the result of the
application of principles quite different from those applicable in
connection with rejection. Indeed, there is no presumption that
the officer who can act on behalf of Her Majesty in rejecting
an employee is one who would have authority to dismiss.
In the case of Emms v. The Queen', on facts
similar to those in the case at bar, Pigeon J. stated
at page 1162:
Having come to the conclusion that the provision of the
Public Service Employment Regulations for an extension of
the probationary period, s. 30(2), is to be considered ineffective,
it follows that Emms was never properly dismissed because the
notice given to him purported to be a rejection during proba
tion. On the appeal it was submitted that even if it was so, the
rejection should be considered as a dismissal effectively ter
minating plaintiff's employment. The Federal Court of Appeal
did not consider this point, due to the conclusion that Emms
had been properly rejected. It was however dealt with in
Ouimet and in my view correctly disposed of, ....
Thereafter, Pigeon J. quoted most of the excerpt
above quoted from the judgment of Jackett C.J. in
Ouimet (supra). Martland J. in the Emms case
(supra), speaking for the majority also referred
with approval to the reasons of Jackett C.J. in the
Ouimet case (supra).
Applying the above-quoted remarks by Jackett
C.J. in the Ouimet case (supra) to the facts in the
case at bar, it is clear, in my view, that the
respondent was intending to reject the appellant
for cause during what the respondent perceived to
be the appellant's probationary period. The March
8, 1977 letter specifically refers to subsection
28(3) of the Public Service Employment Act
which is the rejection for cause during probation
section. The letter states that "... you are being
rejected during your probationary period." Fur
thermore, the letter goes on to state that the
Commission is placing appellant's name on the
eligible list and in such place thereon as in the
opinion of the Commission is commensurate with
appellant's qualifications in accordance with sub
s [1979] 2 S.C.R. 1148.
section 28(5) of the Public Service Employment
Act 6 .
Counsel for the respondent however submits
that once the Adjudicator has properly found, on
ample evidence, that the employer's action was, in
substance, a disciplinary discharge, the discharge
is valid whether the employer's purported action of
rejection for cause is a nullity or not. I do not
agree with this submission.
It is clear from the record in this case that the
respondent purported to reject for cause and not to
dismiss. The situation is similar to that in the
Wright case', where Jackett C.J. stated [at page
779]:
In my view, having attempted to separate an employee from his
employment by rejection after expiration of the probationary
period, the employer could not, in this case, after the event, rely
on the rejection document as having effected a separation of the
employee from his employment by way of dismissal for
misconduct.
I agree with the above views as expressed by
Jackett C.J. in the Wright case (supra) and believe
that they have equal application to the case at bar.
To allow the employer, after the fact, and in the
face of clear and unequivocal words in the rejec
tion letter, to somehow convert what was clearly
intended at the time to be a rejection for cause into
a dismissal would, in my view, distort the appli
cable statutory provisions and result in an injustice
to the appellant.
Counsel for the respondent relied on the Jac-
6 Said subsection 28(5) reads as follows:
28....
(5) Notwithstanding anything in this Act, a person who
ceases to be an employee pursuant to subsection (3)
(a) shall, if the appointment held by him was made from
within the Public Service, and
(6) may, in any other case,
be placed by the Commission on such eligible list and in such
place thereon as in the opinion of the Commission is com
mensurate with his qualifications.
' Wright v. Public Service Staff Relations Board [1973]
F.C. 765.
main, Fardella, Richard and Cutter cases 8 for the
proposition that an adjudicator fails to exercise his
jurisdiction if he does not first inquire into the
genuine nature of the employer's action in purport
ing to reject a probationary employee and that the
adjudicator is not bound by the employer's charac
terization of his own actions. There can be no
doubt about the validity of this proposition but in
my view, this principle can only apply in cases
where the purported rejection for cause actually
occurred during the probationary period. It is only
in those cases where it becomes necessary to decide
whether what took place was really disciplinary
action camouflaged as rejection. In Jacmain and
Fardella (supra), the purported rejection for cause
took place during the actual probationary period.
In Richard (supra) it took place during a purport
ed one year extension of the original probationary
period. However, the Richard case (supra) was
decided in 1977 well before the Ouimet and Emms
decisions (supra) striking down Regulation 30(2).
It does not appear from the reasons in the Richard
case (supra) that the validity of Regulation 30(2)
was in issue. It is, therefore, my view, that Jac-
main, Fardella and Richard (supra) do not assist
the respondent. Cutter (supra) is not a decision
under the Public Service Staff Relations Act and
has no direct relevance to the problem in this case.
I have thus concluded, for all of the above
reasons, that the learned Trial Judge was in error
in holding that the Adjudicator had jurisdiction
pursuant to paragraph 91(1)(b) of the Public Ser
vice Staff Relations Act.
I would therefore allow the appeal with costs
and declare that:
(a) the respondent had no authority to terminate
the employment of the appellant under the au
thority of subsection 28(3) of the Public Service
Employment Act or of subsection 30(2) (re-
voked by SOR/79-14) of the Public Service
Employment Regulations; and
8 Attorney General of Canada v. Public Service Staff Rela
tions Board (Roland Jacmain) [1977] I F.C. 91, affirmed by
Supreme Court of Canada [1978] 2 S.C.R. 15; Fardella v. The
Queen [1974] 2 F.C. 465; Richard v. Public Service Staff
Relations Board [1978] 2 F.C. 344 at page 347; Cutter
Laboratories International v. Anti-dumping Tribunal [1976] 1
F.C. 446.
(b) the purported termination of the appellant's
employment is null and void and of no effect
whatsoever.
I would also refer the matter back to the Trial
Division for the continuance of the trial to deter
mine the quantum of damages to which the appel
lant may be entitled.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I have had the advantage of read
ing the reasons for judgment prepared by my
brother Heald but I regret that I am unable to
agree with the conclusion reached by him. In my
opinion the appeal should be dismissed.
The issue, as I see it, is whether the decision of
the Adjudicator that the appellant was discharged
for disciplinary reasons and that his discharge was
justified is conclusive of the essential issue raised
by the appellant's action for declaratory relief and
damages—namely, whether his employment was
validly terminated. The applicable principle is that
an administrative decision which is final and made
within jurisdiction or statutory authority is conclu
sive of the issue it decides. See Fazal, "Reliability
of Official Acts and Advice", 1972 Public Law 43
at pages 48-49. This effect may be regarded as an
application of that species of res judicata generally
referred to as issue estoppel. See Spencer Bower
and Turner, The Doctrine of Res Judicata, 2nd
ed., pages 149-150.
The issue of the validity of subsection 30(2) of
the Public Service Employment Regulations was
not before the Adjudicator but this cannot in my
opinion prevent his decision from being a conclu
sive finding that what purported to be a rejection
for cause during probation was a disciplinary dis
charge justified by the circumstances. I am unable,
with great respect, to accept the view that because
the purported termination of the appellant's
employment was a nullity as a rejection for cause
under subsection 28(3) of the Public Service
Employment Act the Adjudicator's decision treat
ing it as a disciplinary discharge was also a nullity.
The way that counsel for the appellant put it in his
memorandum was that since the purported rejec
tion was a nullity as a rejection "the grievance was
also a nullity and was therefore not referable to
the adjudicator." The conclusion from this prem
ise, as I understood the argument, was that since
the Adjudicator had nothing before him on which
to rule his decision was a nullity. In support of this
contention counsel for the appellant relied particu
larly on the decision of this Court in Wright v.
Public Service Staff Relations Board (supra) and
on something said by Jackett C.J. in The Queen v.
Ouimet (supra) and approved by Pigeon J. in
Emms v. The Queen (supra). He also referred the
Court to Barnard v. National Dock Labour Board
[1953] 2 Q.B. 18 as supporting his contention.
What the contention seems to boil down to is that
a purported termination of employment which is
ineffective as a termination of one kind can never
in principle be effective as a termination of
another kind. With the greatest respect for the
contrary view I am of the opinion that the authori
ties to which we were referred do not clearly
establish this proposition.
Counsel for the appellant took the position that
the present case is essentially indistinguishable
from the one that was considered in Wright. In my
opinion there are two important differences which
must be borne in mind in considering the import of
the statements on which counsel for the appellant
relied. In Wright the contention of the grievor
before the Adjudicator was that the purported
rejection for cause was made after the termination
of the probationary period and that his service
could not be terminated under subsection 28(3) of
the Public Service Employment Act (see [1973]
F.C. at pages 766-767). The Adjudicator held that
the purported rejection was a nullity but accepted
the employer's contention that the grievor had
been discharged and assumed jurisdiction. In other
words, in Wright the grievance was that the pur
ported rejection for cause was a nullity and not as
in the present case that it was a disciplinary
discharge. And in Wright it was the employer and
not, as in the present case, the employee who
invoked the concept of disciplinary discharge. The
question whether the rejection was a nullity was
clearly not referable to adjudication. It is in this
perspective that the following statement by Jackett
C.J. at pages 779-780 must be read and under
stood: "What there was before him was an unlaw
ful rejection and there seems to be no possible
ground for holding that he had any jurisdiction to
entertain a grievance in respect of such a matter.
He should therefore, in my opinion, have dismissed
the reference for lack of jurisdiction." The same is
true of the following statement by Thurlow J., [as
he then was] at pages 780-781: "The purported
rejection of Wright was a nullity. Wright's griev
ance was not referable to the adjudicator. There
was no jurisdiction in the adjudicator to adjudge
the rejection null as a rejection and no basis upon
which he could adjudge it to be a discharge." It
was with reference to the attempt by the employer
to rely on discharge before the Adjudicator that
Jackett C.J. said at page 779: "In my view, having
attempted to separate an employee from his
employment by rejection after expiration of the
probationary period, the employer could not, in
this case, after the event, rely on the rejection
document as having effected a separation of the
employee from his employment by way of dismis
sal for misconduct." That statement occurs in a
long passage at page 779 in which the Chief
Justice gives his reasons for concluding that the
purported rejection for cause could not be con
sidered a discharge. As I read his reasons in that
passage, as well as in his footnote 5 on page 782,
he approached the question as one of mixed fact
and law, not as one of nullity automatically flow
ing from the nullity of the rejection. As indicated
by his detailed examination of the scheme of the
Act with respect to the various kinds of separation
from employment, he was influenced in his conclu
sion by the difference in nature, as a matter of law,
between a rejection for cause under subsection
28(3) of the Act and a discharge, whether for
disciplinary reasons or unsuitability, as found by
the Adjudicator in the Wright case. His conclusion
was also one of fact based on the evidence, as
indicated by the statement at page 779: "As I view
the matter, there is no evidence on any of the
material that was before any of the tribunals
involved, including this Court, that the applicant
was ever separated from his employment."
Again, what was said by Jackett C.J. in the
Ouimet case in the passage at pages 60 and 61,
which was approved by Pigeon J., speaking for
himself and Pratte J., in Emms at pages 1162 and
1163, was said with reference to a contention by
the employer, in an action by the employee for
declaratory relief and damages, that what purport
ed to be a rejection under subsection 28(3) was in
substance a disciplinary discharge. In Emms it was
similarly the employer who invoked the notion of a
disciplinary discharge. The statement in Ouimet
that is particularly relied on in support of the
submission based on nullity is the following at
page 60: "At least for the purpose of the statutes
that govern the Public Service, an ineffective
attempt to reject under section 28 is not the
equivalent of a dismissal." Despite the use of the
qualifying word "ineffective", I am unable, with
respect, to read this statement as intended to
express the result or effect of nullity. When one
reads the analysis which follows it at page 61
concerning the difference under the statutory
scheme between rejection and dismissal, the state
ment of the Chief Justice appears to be an expres
sion of opinion that action taken in the form of
rejection cannot as a matter of law be treated as
dismissal. The emphasis is not on the fact that the
rejection was "ineffective" or a nullity in that case,
but on the difference in law between rejection and
dismissal. The fact that the Chief Justice cited the
decision of the Supreme Court of Canada in Jac-
main v. The Attorney General of Canada (supra),
in support of the statement quoted above further
indicates in my view that he was not thinking in
terms of nullity, but rather of the reasons for the
majority decision in Jacmain that the rejection for
cause under subsection 28(3) during the proba
tionary period in that case could not be treated as
a disciplinary discharge.
In the present case it was the employee or
grievor who asserted before the Adjudicator that
the purported termination of his employment was
a disciplinary discharge. I am unable to see how a
grievance framed in those terms was a nullity or
one that was not referable to adjudication merely
because the grievor could have taken the position
that the purported rejection was a nullity and not
gone to adjudication at all.
The case of Barnard v. National Dock Labour
Board (supra), which was also relied on by counsel
for the appellant, is in my opinion distinguishable
because there it was held that the decision of an
appeal tribunal which purported to confirm a deci
sion which was a nullity was itself a nullity. In the
present case the Adjudicator did not hold that
what purported to be a rejection was valid as a
rejection but held it to be in effect a disciplinary
discharge.
The question whether the Adjudicator's decision
is to be regarded as conclusive of the essential
issue raised by the appellant's action is therefore in
my opinion to be resolved not on the basis of the
nullity of the rejection but on the basis of the
approach adopted by the Trial Judge—review of
the Adjudicator's decision for jurisdictional error.
In Jacmain a majority in the Supreme Court of
Canada affirmed the principle that an adjudicator
has jurisdiction by reason of paragraph 91(1)(b) of
the Public Service Staff Relations Act to inquire
whether what purports to be a rejection for cause
during a probationary period is in substance a
disciplinary discharge. With respect to the analysis
by Jackett C.J. in Wright and Ouimet of the
difference in law between rejection and discharge,
it is a clear implication of the principle affirmed in
Jacmain that it is not to be regarded as jurisdic
tional error per se to conclude, at least at the
instance of the employee, that a purported termi
nation of employment in the form of rejection is in
substance a disciplinary discharge. Pigeon J.,
speaking for himself and Beetz J., put it as follows
at page 40:
At the hearing, counsel for the Attorney-General properly
conceded that the right of a probationary employee to launch a
grievance against a disciplinary dismissal could not be ousted
by making such dismissal in the form of a rejection under s. 28
of the Public Service Employment Act. This means that, on a
grievance being filed, the Adjudicator had jurisdiction to
inquire whether the rejection was in fact a dismissal as alleged
by the grievor. I therefore agree that the Public Service Staff
Relations Board was right in so holding in accordance with
Fardella v. The Queen [[1974] 2 F.C. 465]. The situation was
not the same as in the case of an employee released by the Civil
Service Commission under s. 31 of the Public Service Employ
ment Act, in which case the Federal Court of Appeal held the
employee's grievance could not be referred to adjudication (in
Re Cooper [[1974] 2 F.C. 407]).
Dickson J., speaking for himself, Laskin C.J.
and Spence J., said at page 25:
As usual, substance, and not form, governs. The form of the
notice cannot deprive an adjudicator of jurisdiction if, on all the
facts, the action taken by the employer is truly disciplinary in
nature. The Federal Court of Appeal did not err in upholding
the right of an adjudicator under the Public Service Staff
Relations Act to determine whether or not the employer's
'purported rejection on probation is, in fact, an act of discipline
resulting in discharge.
The other four members of the Court, who
constituted part of the majority in the result,
refrained from expressing an opinion as to the
nature of the Adjudicator's jurisdiction in a case
such as this. They agreed with the conclusion of
this Court that the rejection was a bona fide
rejection and that, therefore, "the adjudicator was
without jurisdiction to consider the grievance
under section 91 and erred in law in so doing." As
de Grandpré J. put it at page 38: "In view of my
finding on the merits, I do not have to decide
whether the adjudicator has jurisdiction when the
rejection is clearly a disciplinary action."
The five members of the Court who affirmed the
principle that an adjudicator has jurisdiction to
inquire whether a purported termination of em
ployment in the form of rejection is in substance a
disciplinary discharge considered the proper
approach to judicial review of the Adjudicator's
decision on this jurisdictional question of mixed
fact and law. Dickson J., with whom Laskin C.J.
and Spence J. concurred, said at page 29:
The power to review jurisdictional questions provides the
Courts with a useful tool to ensure that tribunals deal with the
type of issues which the Legislature intended. It enables the
Courts to check unlawful attempts at usurpation of power. But
the Courts, in my opinion, should exercise restraint in declaring
a tribunal to be without jurisdiction when it has reached its
decision honestly and fairly and with due regard to the material
before it. The Court should allow some latitude in its surveil
lance of jurisdictional findings. It should ask whether there is
substantial evidence for decisions of fact and a rational basis
for decisions of law, or mixed decisions of fact and law. The
error must be manifest. The role of the Court is one of review,
not trial de novo.
Pigeon J., with whom Beetz J. concurred, said at
page 40:
While the Adjudicator was entitled to inquire whether the
grievor's rejection was in fact a disciplinary dismissal, this
inquiry was on a fact on which his jurisdiction depended, his
findings could not therefore be considered as conclusive and
was subject to review as a matter of law, (Bell v. Ontario
Human Rights Commission [[1971] S.C.R. 756]).
Pigeon and Beetz JJ., however, disposed 'of the
appeal on the ground that the Adjudicator did not
have jurisdiction to consider the sufficiency of the
grounds for rejection as grounds for rejection in
determining whether there was in fact a discipli
nary discharge.
Given these varying approaches to the issue in
the Jacmain case, I am disposed, with respect,
until further indication of the Court's views, to
follow the approach suggested by Dickson J. in
considering whether there was jurisdictional error
in the Adjudicator's decision. In my opinion the
reasons given for the purported rejection in the
third paragraph of the letter from Mr. Doucet,
which is quoted in the reasons of my brother
Heald, afforded substantial evidence and a ration
al basis for the Adjudicator's conclusion.
The difficulty in the present case is that the
appellant seeks in his action for a declaration to
adopt a position contrary to that which he adopted
before the Adjudicator. In effect, he has found
what he considers to be a better basis on which to
rest his case. Since the question is one of jurisdic
tion I do not say that he is estopped from doing
this. But the question whether the Adjudicator
committed a jurisdictional error in finding, at the
instance of the grievor, that the purported rejec
tion was a disciplinary discharge cannot in my
opinion be treated in the same way as the question,
arising without any prior decision by an adjudica
tor, as to whether in an action by an employee for
declaratory relief and damages the employer
should be permitted to rely on what purported to
be a rejection as a disciplinary discharge. In the
latter case, which is not the case before us, the
Court might well be able to take a view which in
my respectful opinion is not open in the case
before us because of the proper limits of judicial
review of the Adjudicator's decision.
For these reasons I agree with the conclusion of
the Trial Division that the Adjudicator's decision
was made within jurisdiction and is conclusive that
the employment of the appellant was validly ter
minated by a disciplinary discharge that was justi
fied. I would accordingly dismiss the appeal, but I
would make no order as to costs.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: I have had the benefit of considering
the separate and differing reasons for judgment
prepared by Heald J. and Le Dain J., which set
forth extensively the facts and issues, the conten
tions of the parties and the various court decisions
cited by counsel in argument. I need not repeat
them here, but I shall refer to some of them in
giving my own reasons. I regard the issues as being
fairly arguable.
It is clear that, following receipt by the appel
lant of the letter dated March 8, 1977, from P. D.
Doucet, quoted in the reasons of Heald J., advising
him that he had been rejected and stating the
reasons for the rejection, the appellant filed a
grievance which was referred to adjudication pur
suant to paragraph 91(1)(b) of the Public Service
Staff Relations Act; also that the Adjudicator
determined that the measure taken by the employ
er was of a disciplinary nature and consequently
that he had jurisdiction pursuant to section 91 to
decide whether or not the disciplinary action, i.e.
discharge of the grievor, was warranted. The
Adjudicator found that the disciplinary action was
warranted, and he dismissed the grievance.
The appellant then commenced an action in the
Trial Division, and in that action the learned Trial
Judge concluded that in the circumstances con-
cerned the Adjudicator must inquire into the gen
uine nature of the employer's rejection of the
grievor and must consider the facts objectively to
decide, as a question of fact, whether what is
characterized as a rejection on probation was in
fact disciplinary action within the meaning of
paragraph 91(1)(b) thereby conferring jurisdiction
on the Adjudicator. The Trial Judge found that
there was ample evidence before the Adjudicator
to justify his, the Adjudicator's, findings that the
grievor was discharged for a breach of discipline,
and that he had jurisdiction. The plaintiff's action
in the Trial Division was thereupon dismissed.
In my opinion the Adjudicator in arriving at his
conclusions exercised a jurisdiction that he pos
sessed to consider all the facts, and he sought to
find the substance, the true nature, of the action
taken by the employer. The employer's letter of
March 8, 1977 on its face purported to indicate
action under subsection 28(3) of the Public Ser
vice Employment Act. But it also gave reasons. In
the particular circumstances the letter did not
necessarily establish that the action was not essen
tially disciplinary. The position taken before the
Adjudicator by the grievor and his counsel was
that the employer's action was in fact disciplinary.
The decision was one for the Adjudicator to make
bona fide. I think that he made a decision within
his jurisdiction to do so and that there was suffi
cient evidence to support it.
On my appreciation of the matter I agree with
the view of Le Dain J. that the issue is, using his
words, "whether the decision of the Adjudicator
that the appellant was discharged for disciplinary
reasons and that his discharge was justified is
conclusive of the essential issue raised by the
appellant's action for declaratory relief and dam-
ages—namely, whether his employment was valid
ly terminated", and with his further view that
"The question whether the Adjudicator's decision
is to be regarded as conclusive of the essential
issue raised by the appellant's action is therefore in
my opinion to be resolved not on the basis of the
nullity of the rejection but on the basis of the
approach adopted by the Trial Judge—review of
the Adjudicator's decision for jurisdictional error."
For these reasons and the reasons of Le Dain J.,
I agree with the conclusion of the Trial Division
that the Adjudicator's decision was made within
jurisdiction and is conclusive that the employment
of the appellant was validly terminated by a disci
plinary discharge that was justified. I would dis
miss the appeal and make no order as to costs.
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.