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A-92-81
F. Drouin and A. J. L. Lemoyne (Applicants)
v.
Public Service Staff Relations Board and J. Gali- peault (Respondents)
Court of Appeal, Pratte, Ryan and Le Dain JJ.— Ottawa, September 22 and October 6, 1981.
Judicial review — Public Service — Application to set aside a decision of the Public Service Staff Relations Board dis missing the complaint made by the applicants against their employer pursuant to s. 20(1)(c) of the Public Service Staff Relations Act — Written reprimands were placed in appli cants' files — Grievances were dismissed at all levels — Applicants filed a complaint with the Board requesting it to make an order directing the employer to remove the repri mands from their files — Whether Board loses jurisdiction if relief is sought which the Board feels it cannot grant — Application allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 8(2)(c), 20, 90(1), 91(1), 95(3).
APPLICATION for judicial review. COUNSEL:
John D. Richard, Q.C. for applicants.
Robert Sutherland-Brown and Pierre Hamel
for respondents.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli cants.
Deputy Attorney General of Canada for respondents.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: The applicants are asking the Court to set aside a decision of the Public Service Staff Relations Board dismissing the complaint made by them against their employer pursuant to para graph 20(1)(c) of the Public Service Staff Rela tions Act, R.S.C. 1970, c. P-35.
The applicants worked in the Department of National Revenue. In April 1980, they received from the head of their section a letter reprimand ing them for using abusive and insulting language at a meeting which they had attended as repre sentatives of their Union to discuss certain administrative policies of the Department. The section chief warned them that the letter was a written reprimand that would be placed in their files. Each of the applicants then took advantage of subsection 90(1) of the Public Service Staff Relations Act and filed a grievance demanding that this disciplinary action be withdrawn. These grievances were dismissed by the employer at each of the four levels provided for by the grievance procedure applicable in the circumstances. They were not grievances which, under subsection 91(1), could be referred to adjudication; they had there fore been finally dismissed and, under subsection 95(3), "no further action under this Act [could] be taken thereon".' Applicants then filed a com plaint with the Board under section 20 of the
Subsections 91(1) and 95(3) read 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
(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.
95....
(3) Where
(a) a grievance has been presented up to and including the final level in the grievance process, and
(b) the grievance is not one that under section 91 may be referred to adjudication,
the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
Act. 2 This complaint accused the employer of infringing paragraph 8(2)(c) 3 of the Act by taking disciplinary action against officers of the Union to penalize actions taken by them in the course of their duties as representatives of the employees. On the complaint form prescribed by the regula-
2 Section 20 reads as follows:
20. (1) The Board shall examine and inquire into any complaint made to it that the employer, or any person acting on its behalf, or that an employee organization, or any person acting on its behalf, has failed
(a) to observe any prohibition contained in section 8, 9 or 10;
(b) to give effect to any provision of an arbitral award;
(c) to give effect to a decision of an adjudicator with respect to a grievance; or
(d) to comply with any regulation respecting grievances made by the Board pursuant to section 99.
(2) Where under subsection (1) the Board determines that any person has failed to observe any prohibition, to give effect to any provision or decision or to comply with any regulation as described in subsection (1), it may make an order, addressed to that person, directing him to observe the prohibition, give effect to the provision or decision or comply with the regulation, as the case may be, or take such action as may be required in that behalf within such specified period as the Board may consider appropriate and,
(a) where that person has acted or purported to act on
behalf of the employer, it shall direct its order as well
(i) in the case of a separate employer, to the chief executive officer thereof, and
(ii) in any other case, to the Secretary of the Treasury Board; and
(b) where that person has acted or purported to act on behalf of an employee organization, it shall direct its order as well to the chief officer of that employee organization.
3 Section 8(2)(c) reads as follows:
8....
(2) No person shall
(c) seek by intimidation, by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee
(i) to become, refrain from becoming or cease to be, or
(ii) except as otherwise provided in a collective agree ment, to continue to be,
a member of an employee organization, or to refrain from
exercising any other right under this Act; but no person shall be deemed to have contravened this subsection by reason of any act or thing done or omitted in relation to a person employed, or proposed to be employed, in a managerial or confidential capacity.
tions, the applicants indicated that they were asking the Board to make an order directing the employer to withdraw the letter of reprimand which had been placed in their files. This is the complaint which was dismissed by the decision a quo, solely on the ground that the Board con sidered it did not have jurisdiction over the case at bar, because it felt it could not grant the relief requested by the applicants, since that relief was the same as that which they had vainly tried to obtain through their grievances.
In my view, this decision is incorrect. When a complaint is filed under subsection 20(1), the Board does not have before it an application for relief; it has a complaint charging one party with failing to do what the law required it to do. If after investigation the Board considers that there were grounds for the complaint, it must make the order that seems appropriate to it in the circumstances from among those it is authorized by law to make; and the Board must make the order so selected even though it is relief which the complainant did not request. Accordingly, if the party who has filed a complaint under section 20 is asking for relief which the Board feels it cannot grant, the Board does not on that account cease to have jurisdiction and a duty to act on the complaint. In such a case, however, the Board should, if it considers that the complaint has merit, see that an order authorized by the statute is made.
For these reasons, I would allow the application, set aside the decision a quo, and refer the matter back to the Board for action on the complaint made by the applicants, assuming that a complaint made pursuant to section 20 does not cease to be within the jurisdiction of the Board solely because the complainant seeks relief which the Board con siders it cannot grant.
* * *
RYAN J.: I concur.
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LE DAIN J.: I concur.
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