A-871-83
The Queen in right of Canada as represented by
the Treasury Board, Transport Canada, J. P.
Little and R. G. Bell (Applicants)
v.
Canadian Air Traffic Control Association
(Respondent)
Court of Appeal, Pratte, Heald and Ryan JJ.—
Ottawa, January 12 and February 24, 1984.
Public service — Judicial review — Application to review
and set aside decision of Public Service Staff Relations Board
— Whether employer's refusing union to provide legal counsel
to air traffic controllers at administrative inquiry into operat
ing irregularities involving said employees interference with
representation of employees by union, contrary to s. 8(1) of Act
— Whether employees facing serious charges have right to
legal representation at such inquiry — Whether right to
"employee representative" in collective agreement includes
right to legal counsel — Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, ss. 8(1), 20(1)(a) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Estoppel — Provision of collective agreement allowing
employees to "be accompanied by an employee representative"
at administrative inquiry — For 15 years, Department of
Transport allowing employees legal representation at such
inquiries — Whether employer estopped from relying on true
meaning of provision to refuse employees legal representation
— Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
ss. 8(1), 20(1)(a) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
At a hearing held by a three-person board established by the
Department of Transport to inquire into certain operating
irregularities at Ottawa International Airport, the two mem
bers of the respondent Association who were involved and who
appeared as witnesses were refused legal representation. The
respondent thereupon filed a complaint with the Public Service
Staff Relations Board, alleging interference with the right of its
two members to be represented by the respondent, in violation
of subsection 8(1) of the Public Service Staff Relations Act,
particularly having regard to article 6.01 of the collective
agreement which allowed employees to be accompanied by an
"employee representative" at "any administrative inquiry". The
P.S.S.R.B. found that "employee representative" did not
include legal counsel. However, it also found that the course of
conduct adopted by the Department of Transport over 15
years—allowing legal representation at such inquiries—gave
rise to estoppel. The Board further concluded that the appli-
cants had violated subsection 8(1) in that they had interfered
with respondent's representation of employees.
This section 28 application seeks to have that decision
reviewed and set aside.
Held (Heald J. dissenting), the application should be
allowed.
Per Pratte J.: There cannot be promissory estoppel in the
absence of a promise, by words or by conduct, the effect of
which is clear and unambiguous and which led the promisee to
act differently than he otherwise would have. Firstly, the
Department's conduct cannot be considered a promise not to
rely on the true meaning of article 6.01; secondly, if the union
never tried to obtain a modification of that article, that was
solely because of its own interpretation of that clause and not
because of the conduct of the Department.
Finally, since the inquiry is devoid of any legal effect, the
principles of procedural fairness invoked by the respondent do
not apply in this case and, even if they did, they would not
require that the right to legal representation be given to the air
traffic controllers.
Per Ryan J.: The application should be allowed for the
reasons given by Pratte J., with the reservation that the issue of
procedural fairness need not be decided since it cannot be
considered unfair of the three-man board to have insisted on
observance of a term in the collective agreement, particularly
when the circumstances were not such as to estop him from
doing so. The refusal of legal representation cannot constitute a
violation of subsection 8(1).
Per Heald J. (dissenting): Since the record does not establish
a course of conduct on the part of the Department of Transport
relative to the interpretation to be given to article 6.01 and
since it was the respondent's own interpretation of that article
which led the respondent to rely on that clause to its detriment,
estoppel by conduct is not established. Even though article 6.01
did not give employees the right to legal counsel, the refusal of
legal representation was still an interference with union
representation of employees within the meaning of subsection
8(1). Furthermore, there was, at common law, a duty to act
fairly which was breached: the 1982 policy change by which the
possible consequences of these investigations were more serious
required relaxing rather than making more restrictive the right
to counsel.
These controllers were facing serious charges with serious
possible consequences affecting their reputation and livelihood,
and they should have been allowed a lawyer.
CASES JUDICIALLY CONSIDERED
APPLIED:
Combe V. Combe, [1951] 1 All E.R. 767 (C.A.); Pett v.
Greyhound Racing Association, Ltd., [1968] 2 All E.R.
545 (C.A.).
REFERRED TO:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602.
COUNSEL:
Harvey A. Newman for applicants.
Denis J. Power for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicants.
Nelligan/Power, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of the Public Service Staff
Relations Board finding that subsection 8(1) of the
Public Service Staff Relations Act [R.S.C. 1970,
c. P-351 was contravened by the applicant J. P.
Little. The circumstances which led to that deci
sion as well as the reasons given in its support by
the Chairman of the Board are accurately summa
rized by my brother Heald.
The first submission made by counsel for the
applicant was that the record did not disclose a
violation of subsection 8(1) even if it was assumed
that the respondent had the right to have a lawyer
appear at the inquiry to represent the two air
controllers concerned.
I confess that I found it very difficult to grasp
the argument put forward by counsel in support of
that proposition. In so far as I could understand it,
it amounted to this: subsection 8(1) prohibits an
employer from interfering into the affairs of a
union; there is no such interference when, as was
the case here, an employer merely seeks to force
the union to comply with his interpretation of the
collective agreement signed by the union.
This argument does not convince me. I readily
concede that, if a union has no right to represent
an employee in the manner in which it seeks to
represent him, the employer could not be blamed
for refusing to let that union do something that it
is not, in law, authorized to do. In my view, the act
of the employer would, then, be fully justifiable
and would not contravene subsection 8(1). How
ever, if, as is assumed for the purposes of this
argument, a union merely seeks to represent its
members in a manner authorized by law, then, in
my opinion, anything that is done by the employer
to prevent the union from exercising that right
constitutes an interference which is prohibited by
subsection 8(1). The fact the employer might have
reasonable grounds to believe that the union has
no right to act as it does is irrelevant since "mens
rea" is not an ingredient of the course of conduct
prohibited by subsection 8(1).
In order to dispose of this application, it is
necessary, therefore, to determine whether the
respondent had the right to have a lawyer repre
sent the two air controllers involved in the
administrative investigation launched by the
Department of Transport.
The Chairman of the Public Service Staff Rela
tions Board gave an affirmative answer to that
question. True, in a first step, he interpreted
article 6.01 of the collective agreement as giving
air controllers involved in administrative investiga
tions the right to be represented by a fellow
employee rather than by legal counsel; however, in
a second step, he found that the applicant was
estopped from invoking the terms of article 6.01 of
the collective agreement since authorities in the
Department of Transport had, by their past con
duct, represented to the union either that they
agreed with its interpretation of that article or
that, in any event, they would not insist that this
article be complied with.
Like my brother Heald, I agree with the Chair-
man's interpretation of article 6.01 of the collec
tive agreement. Under this clause, air controllers
involved in an administrative inquiry or investiga
tion did not have the right to be represented by
legal counsel; they were merely entitled to be
accompanied by a fellow employee.
I also share Mr. Justice Heald's view that the
Chairman was wrong in finding that the applicant
was estopped from relying on article 6.01. While
the doctrine of promissory estoppel is far from
clear, it seems established that there cannot be
such an estoppel in the absence of a promise, by
words or by conduct, the effect of which is clear
and unambiguous. Here, the course of conduct
that would give rise to the estoppel is the conduct
of the authorities of the Department of Transport
which, for many years apparently, let employees
involved in administrative investigation retain legal
counsel to represent them at those investigations. I
do not see, in that course of conduct, a clear and
unambiguous promise that the Department either
agreed with the union's interpretation of article
6.01 or would not in the future rely on the true
meaning of article 6.01. Moreover, it seems estab
lished, also, that the doctrine of promissory estop-
pel, in addition to a clear and unambiguous pro
mise, requires that such a promise must have led
the promisee to act differently from what he would
otherwise have done. Here, it is said that the
conduct of the Department of Transport led the
union to refrain from asking for a modification of
article 6.01 of the collective agreement. Like my
brother Heald, I am of opinion that this is inaccu
rate. If the union never tried to obtain a modifica
tion of that article, it is because of its own inter
pretation of that clause not because of the conduct
of the Department. If no inquiry or investigation
had been held and if the Department, as a conse
quence, had made no promise or representation on
that subject, the union would still have relied on its
interpretation of the clause and refrained from
asking that it be modified.
The last question to be resolved is whether air
controllers involved in an administrative inquiry
could not, in spite of article 6.01 of the collective
agreement, have the right to be represented by
legal counsel by virtue of the principles of fairness
referred to by the Supreme Court of Canada in the
Nicholson case' and the second Martineau case. 2
Before answering this question, a few things
should be said about those administrative in
quiries. They are purely private investigations
made at the request of the Department of Trans
port when there are reasons to believe that an air
controller has done something wrong. Their sole
purpose is to establish facts; they are devoid of any
legal effect since they are neither prescribed nor
authorized by statute or regulation; if they take
place, it is only because the authorities of the
Department of Transport directed that they be
made; they are of the same nature as private
investigations made by an employer to determine
whether his employees did their work to his satis
faction. True these inquiries may lead to findings
which may later be the basis of disciplinary action
by the employer. However, these findings, being
devoid of any legal effect, may be ignored by the
employer who may decide to impose or not to
impose sanctions whatever be the outcome of the
inquiry or, even, without even holding an inquiry.
I am of opinion that the principles of procedural
fairness invoked by the respondent do not apply to
inquiries or investigations of this nature. I am also
of the view that, if these principles did apply, they
would not require that the air controllers involved
be given the right to be represented by legal
counsel. I see nothing unfair in excluding lawyers
from that type of inquiry, specially when the bar
gaining agent of the employees involved has
expressly agreed in the collective agreement that
they be excluded.
I would, for these reasons, allow the section 28
application, set aside the decision under attack and
send the matter back to the Board in order that it
be decided on the basis that
(a) the applicant is not estopped from relying on
the true meaning of article 6.01 of the collective
agreement; and
Nicholson v. Haldimand-Norfolk Regional Board of Com
missioners of Police, [ 1979] 1 S.C.R. 311.
2 Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602.
(b) the principles of natural justice and proce
dural fairness do not require that air controllers
involved in an administrative inquiry or investi
gation be represented by legal counsel.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): This is a section 28
application to review and set aside a decision made
by J. Harold Brown, Q.C., Chairman of the Public
Service Staff Relations Board dated June 10,
1983.
On May 18, 1983, the respondent filed with the
Public Service Staff Relations Board, inter alia, a
complaint under section 20 of the Public Service
Staff Relations Act' alleging that the Treasury
Board, the Department of Transport, J. P. Little
and R. G. Bell contravened subsection 8(1) of the
said Act and article 6.01 of the collective agree
ment between the Treasury Board and the
respondent in that they interfered with the right of
two members of the respondent Association (J.
Lycan and R. Scott) to be represented by the
respondent at an inquiry by a three-person board
(of which the applicant Little was Chairman)
established to inquire into certain operating
irregularities at Ottawa International Airport. The
alleged operating irregularities involved Messrs.
Lycan and Scott, both of whom are air traffic
controllers and members of the respondent Asso
ciation. The board of inquiry scheduled a hearing
at Ottawa on May 16, 1983 at which Messrs.
Lycan and Scott were to appear as witnesses. The
respondent retained an Ottawa lawyer, Mr. David
Jewett, to represent them at that hearing. The
applicant Little, as Chairman at the inquiry,
refused to allow Mr. Jewett to remain at the
hearing in any capacity. However, he did allow an
' The relevant portion of said section 20 reads:
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;
officer of the respondent, Mr. Marchand, to repre
sent Messrs. Lycan and Scott at the inquiry. It is
not in dispute that Mr. Little was, at all relevant
times, "employed in a managerial or confidential
capacity" within the meaning of subsection 8(1),
since he was employed by Transport Canada as
Unit Chief, Ottawa, ATC Unit, Ottawa Interna
tional Airport.
The respondent filed the section 20 complaint
because, in its view, the refusal by the applicant
Little to allow controllers Lycan and Scott to be
represented by legal counsel retained by it violated
subsection 8(1) of the Public Service Staff Rela
tions Act, 4 particularly having regard to the provi
sions of article 6.01 of the current collective agree
ment in effect between the respondent and the
Treasury Board. Article 6.01 reads as follows:
6.01 At any administrative inquiry, hearing or investigation
into an operating irregularity, where the actions of an Air
Traffic Controller may have had a bearing on the events or
circumstances leading thereto, and the Controller is required to
appear at the administrative inquiry, hearing or investigation
being conducted into such irregularity, he may be accompanied
by an employee representative of his choice.
On June 7 and 8, 1983, the Public Service Staff
Relations Board, Mr. J. Harold Brown, Q.C.,
Chairman, presiding, heard the section 20 com
plaint and rendered the Board's decision on June
10, 1983. In his reasons, Chairman Brown found
that the "comprehensive investigation" initiated by
the employer in 1982 which resulted in the inquiry
board's hearing on May 16, 1983, constituted an
"administrative inquiry, hearing or investigation
into an operating irregularity" within the meaning
of article 6.01 supra. There was also uncontradict-
ed evidence adduced to the effect that in all
administrative inquiries since September of 1977,
whenever controllers so desired, they were permit
ted to be represented by legal counsel provided by
the respondent. Mr. Brown made the further
observation that there was no evidence even sug-
4 Subsection 8(1) reads:
8. (1) No person who is employed in a managerial or
confidential capacity, whether or not he is acting on behalf of
the employer, shall participate in or interfere with the forma
tion or administration of an employee organization or the
representation of employees by such organization.
gesting that during the 15 years when article 6.01
formed a part of the various collective agreements
between the parties the respondent had ever been
denied the right to represent employees by legal
counsel when it had made the choice to have the
employees so represented. Mr. Brown then decided
that the words "employee representative" in article
6.01 supra could only mean an employee of Trans
port Canada in the Air Traffic Control Group
Bargaining Unit and that those words "... cannot
be stretched to include legal counsel". He then
proceeded to conclude that the above mentioned
evidence established a course of conduct which,
reasonably construed, could have induced the
respondent to believe that Transport Canada
would not insist on its strict legal rights under
article 6.01 and that it would be inequitable to
allow Transport Canada and the Treasury Board
to insist on the terms of article 6.01 `that is—that
employees' representatives at administrative in
quiries into operating irregularities be restricted to
members of the Air Traffic Control Group Bar
gaining Unit. He went on to make a finding of
detrimental reliance by the respondent on this
course of conduct because Transport Canada did
not at any time until May of 1983 suggest or
request a change in this practice thereby making it
impossible for the respondent to require Treasury
Board to negotiate a change in its new practice
during the life of the present collective agreement.
Accordingly, in the view of Mr. Brown, all of the
essential elements necessary for the imposition of
the doctrine of estoppel had been met. Thereafter,
he found a contravention of subsection 8(1) of the
Act in that the Treasury Board, Transport Canada
and Mr. John P. Little interfered with the
respondent's representation of employees in viola
tion of subsection 8(1).
I will deal initially with Chairman Brown's view
that the words "employee representative" as used
in article 6.01 of the collective agreement must be
interpreted restrictively so as to include only repre
sentatives who are themselves employees. When
interpreted in the context of the collective agree
ment as a whole I agree with that view of the
matter. When the parties wished to make it clear
that employees or committees of employees were
entitled to the assistance of representatives other
than fellow employees, clear and unambiguous
language was used. (See for example article 2.04;
article 5.04; article 5.12 and article 5.14.) Further
more, as pointed out by Mr. Brown, article 6.05
provides, inter alia, that a controller's representa
tive at an inquiry dealing with operating
irregularities will suffer no loss of normal pay
while appearing before the inquiry. This makes it
abundantly clear, in my view, that the "representa-
tive" contemplated in article 6.01 means a fellow
employee of the controller. I have therefore con
cluded that Chairman Brown did not err in his
interpretation of article 6.01.
I come now to the finding by Chairman Brown
that, on the facts of this case, the essential ingredi
ents of estoppel by conduct had been established in
respect of article 6.01 of the agreement. The
learned Chairman, drawing on the principles enun
ciated by Denning L.J. in the case of Combe v.
Combe,' and applying them to the present factual
situation, said that the issues to be determined
were:
(1) whether there was some conduct on the part
of Transport Canada that induced the respond
ent to believe that the strict legal rights under
article 6.01 would not be enforced; and
(2) whether, having regard to the dealings which
had taken place between the parties, it would be
inequitable to allow the employer to insist on the
strict legal requirements of article 6.01 since the
respondent had relied on the conduct of Trans
port Canada to its detriment.
Mr. Brown found on the evidence, that issue (1)
supra should be answered in the affirmative. He
also answered issue (2) in the affirmative stating
(Case, p. 139):
43. In the instant situation the Complainant relied on the
practice of Transport Canada since 1977, if not considerably
earlier, of allowing it or the controllers concerned, when they so
desired, to be represented by legal counsel retained by CATCA
in all administrative inquiries. Further, Transport Canada did
not at any time until May of this year suggest or request a
change in that practice. In these circumstances quite naturally
the Complainant felt no need to make any proposals during any
previous negotiations to secure guarantees in writing to the
above entitlement to representation by legal counsel of its
5 [1951] 1 All E.R. 767 (C.A.).
choice. The foregoing properly can be characterized as conduct
on the part of the Complainant to its detriment. Accordingly, I
am satisfied that the remaining element for the imposition of
the doctrine of estoppel has been met.
I do not think that the doctrine of estoppel can be
applied to the facts of this case. I say this because,
in my view, this record does not establish a course
of conduct on the part of Transport Canada rela
tive to the interpretation to be given to article 6.01
of the collective agreement. The uncontradicted
evidence of William Robertson, the respondent's
immediate past President was to the effect that,
prior to 1983, because Fact Finding Boards could
not impugn the conduct of controllers and because
any evidence of substandard performance could
not be used in subsequent disciplinary proceedings
against a controller, they were seldom represented
by legal counsel notwithstanding the respondent's
right to have them so represented (see Case, p.
127). From this evidence it is clear that the
respondent had, over the years, interpreted article
6.01 as entitling it to have the employees repre
sented by legal counsel. Thus, it was not the
conduct or actions of Transport Canada with
respect to article 6.01 which had been relied on to
the detriment of the respondent. It was rather the
respondent's improper interpretation of that article
(if I am correct in my view of the matter) which
has led to the difficulty. I therefore respectfully
disagree with the view expressed by Mr. Brown
that estoppel by conduct was established on the
facts of this case.
Thereafter, in a very short paragraph, Mr.
Brown disposed of what I consider to be the cen
tral issue raised by this application, namely,
whether there has been a contravention of subsec
tion 8(1) of the Act. At page 139 of the Case, he
said:
44. The sole remaining issue before me is whether there has
been a contravention of subsection 8(1) of the Act. Based on its
language I am forced to conclude that the Respondents, the
Treasury Board, Transport Canada and Mr. John P. Little
interfered with the representation of employees by the Com
plainant in violation of subsection 8(1). The evidence does not
warrant a similar finding in respect of the Respondent, Mr.
R.G. Bell.
I must say at the outset that I agree with Mr.
Brown's conclusion that the provisions of subsec
tion 8(1) of the Act have been contravened in this
case. However, in view of the applicant's submis-
sions to us, I think it necessary to examine that
conclusion with some care and in some detail.
Counsel for the applicant submitted that subsec
tion 8(1) of the Public Service Staff Relations Act
was simply intended to prevent an employer from
becoming involved in the relationship between an
employee and his bargaining agent and "... is not
intended to provide the bargaining agent with
access to the employer, even ostensibly to make
representations on behalf of an employee". I reject
summarily this narrow and restricted concept of
representation. Surely it has long been an accepted
fact in labour management relations that the duty
of representation of its members by a certified
collective bargaining agent is a continuing duty
and extends to each and every facet of the
employees' conditions of employment. Therefore, I
have no difficulty in concluding that this respond
ent was engaged in the representation of
employees Lycan and Scott when it engaged legal
counsel to represent them at subject inquiry. The
next question is whether the applicant Little, in
refusing to allow legal representation at the inqui
ry, interfered with that representation. The Short
er Oxford English Dictionary defines "interfere"
inter alia, as follows:
Of things, actions, etc.: To come into collision or opposition, so
as to affect the course of .... Of persons: To meddle with; to
interpose in something, esp. without having the right to do
so .... to affect some action; to intervene.
The Living Webster Encyclopedic Dictionary
defines "interfere" inter alia, as:
clash, obstruct or impede; to intervene or interpose in another's
concerns, especially intrusively or without warrant; to meddle
I am satisfied, based on these dictionary defini
tions and my own appreciation of the plain mean
ing of "interfere" as that word is used in everyday
parlance, that the applicant Little, in refusing to
allow legal representation at the inquiry was inter
vening and interposing in the concerns of
employees Lycan and Scott and in the concerns of
the respondent union and therefore interfering
with the respondent's representation of its mem
bers who were employees of the applicant Trea
sury Board. However, that does not necessarily
finally determine the issues raised by this applica
tion. Can it be said that management is interfering
with bargaining agent representation of employees
within the meaning of subsection 8(1) in a situa
tion such as this where, pursuant to the collective
agreement between the parties, these two control
lers did not have the contractual right to be repre
sented by legal counsel? 6 In my view, it would still
be an intervention or a meddling in the concerns of
others and thus, meet the definition of "interfer-
ence". It is still, in my view, an interference in the
right and duty of the respondent Association to
attempt to represent its members in the most
effective way possible. However, on the particular
facts of this case, I think that separate and apart
from the collective agreement, there arose, at
common law, a duty to act fairly which was
breached by the applicant Little. I say this because
of the following uncontradicted facts: Since 1977,
if not much earlier, it was the practice of Trans
port Canada to allow the controllers concerned,
when they so desired, to be represented in all
administrative inquiries by legal counsel retained
by the respondent. Prior to December, 1982, since
Fact Finding Boards could not impugn the conduct
of controllers and since any evidence of substand
ard performance could not be used in subsequent
disciplinary proceedings, the controllers concerned
were seldom represented by legal counsel. How
ever, in December of 1982, the ATS Operating
Guidelines were changed to provide that following
"comprehensive investigations" by "three-man
Boards", those Boards, unlike the earlier Fact
Finding Boards, were empowered to attribute re
sponsibility for human error and to impose disci
plinary measures. The evidence was that because
the "comprehensive investigation" could adversely
affect a controller's career, the respondent was
affording to those controllers the benefit of legal
counsel. It was not until May of 1983 that Trans
port Canada suggested or requested a change in
the firmly established practice of allowing legal
representation. One would have thought that with
the policy change of 1982 referred to supra
making the possible consequences of comprehen
sive investigations far more serious from the point
of view of the controllers concerned, that simple
fairness would have impelled Transport Canada - to
relax rather than to make more restrictive the
right to be represented by legal counsel. It must be
6 This assumes that I am correct in my interpretation of
article 6.01 of the collective agreement.
remembered that this was a comprehensive investi
gation into certain operating irregularities. The
collective agreement defines operating irregulari
ties as situations in which it is alleged that flight
safety may have been jeopardized, less than mini
mum separation may have existed, or both. The
respondent's complaint (Case, p. 001) alleges:
The scope of Mr. Little's investigation covered a broad spec
trum and the range of decisions that he could take against the
employees included disciplinary action up to and including
discharge.
Because of those circumstances, I think the judg
ment of Lord Denning M.R. in Pett v. Greyhound
Racing Association, Ltd. 7 is relevant to the situa
tion here. In that case a dog trainer's licence was
being scrutinized by track stewards. At a hearing
the trainer sought to be represented by counsel.
His request was refused. Lord Denning stated at
page 549:
Now the point arises: has the trainer a right to be legally
represented? The club object to any legal representation. Their
secretary states in his affidavit:
"If legal representation were allowed as of right, the delay
and complications that this would cause would largely frus
trate the stewards' intention to conduct their meetings
expeditiously and with complete fairness."
Counsel for the defendants, says that the procedure is in the
hands of the stewards. If they choose to say: "We will not hear
lawyers", that is for them, he says, and it is not for the courts to
interfere.
I cannot accept this contention. The plaintiff is here facing a
serious charge. He is charged either with giving the dog drugs
or with not exercising proper control over the dog so that
someone else drugged it. If he is found guilty, he may be
suspended or his licence may not be renewed. The charge
concerns his reputation and his livelihood. On such an inquiry, I
think that he is entitled not only to appear by himself but also
to appoint an agent to act for him. Even a prisoner can have his
friend. The general principle was stated by STIRLING, J. in
Jackson & Co. v. Napper, Re Schmidt's Trade Marks (1886),
35 Ch.D. 162 at p. 172:
.. that, subject to certain well-known exceptions, every
person who is sui juris has a right to appoint an agent for any
7 [1968] 2 All E.R. 545 (C.A.).
purpose whatever, and that he can do so when he is exercis
ing a statutory right no less than when he is exercising any
other right."
This was applied to a hearing before an assessment committee
in the case of R. v. St. Mary Abbotts, Kensington Assessment
Committee, (1891) I Q.B. 378. It was held that a ratepayer
had a right to have a surveyor to appear for him. Once it is seen
that a man has a right to appear by an agent, then I see no
reason why that agent should not be a lawyer. It is not every
man who has the ability to defend himself on his own. He
cannot bring out the points in his own favour or the weaknesses
in the other side. He may be tongue-tied or nervous, confused
or wanting in intelligence. He cannot examine or cross-examine
witnesses. We see it every day. A magistrate says to a man:
"You can ask any questions you like"; whereupon the man
immediately starts to make a speech. If justice is to be done, he
ought to have the help of someone to speak for him; and who
better than a lawyer who has been trained for the task? I
should have thought, therefore, that when a man's reputation or
livelihood is at stake, he not only has a right to speak by his
own mouth. He has also a right to speak by counsel or solicitor.
1 am aware that MAUGHAM, J. once expressed a different
view. In Maclean v. Workers Union, (1929) All E.R. Rep. 468
at p. 471; (1929) I Ch. 602 at p. 621, speaking of domestic
tribunals, he said:
"Before such a tribunal counsel have no right of audience
and there are no effective means of testing by cross-examina
tion the truth of the statements which may be made."
All I would say is that much water has passed under the
bridges since 1929. The dictum may be correct when confined
to tribunals dealing with minor matters where the rules may
properly exclude legal representation. (Re Macqueen and Not-
tingham Caledonian Society (1861), 9 C.B.N.S. 793, seems to
have been such a case.) The dictum does not apply, however, to
tribunals dealing with matters which affect a man's reputation
or livelihood or any matters of serious import. Natural justice
then requires that he can be defended, if he wishes, by counsel
or solicitor.
In my view, that reasoning applies equally to the
situation in the case at bar. Controllers Lycan and
Scott were facing serious charges with serious
possible consequences, charges affecting their
reputation and their livelihood. They should have
been given the opportunity to defend themselves
with a lawyer trained for the task. When this
circumstance is added to the practice of allowing
legal representation over the years and in situa
tions where the consequences were less serious,
which practice was stopped without notice or
warning of any kind, I conclude that the applicant
has breached its duty of fairness to subject con
trollers and that in the particular and peculiar
circumstances of this case, controllers Lycan and
Scott were entitled to the benefit of legal counsel
and that in refusing them this entitlement,
respondent's representation of them was "inter-
fered" with contrary to subsection 8(1) of the Act.
I wish to stress that this conclusion should in no
way be taken as a statement of opinion that in all
cases the duty to act fairly in administrative pro
ceedings requires that the parties to those proceed
ings be afforded the opportunity to be represented
by legal counsel. As stated by Dickson J. in the
Martineau case, 8 "In the final analysis, the simple
question to be answered is this: Did the tribunal on
the facts of the particular case act fairly toward
the person claiming to be aggrieved?" On these
facts and in these circumstances I answer that
question in the negative for the reasons expressed
supra.
I would, therefore, dismiss the section 28
application.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: I have had the benefit of reading the
reasons for judgment of Mr. Justice Pratte and
Mr. Justice Heald. I agree with Mr. Justice Pratte
that the section 28 application should be granted. I
also agree with his reasons for so deciding, with,
however, a reservation concerning whether the
principles of fairness developed in cases having to
do with administrative proceedings apply to the
inquiry involved in the present case.
I do not find it necessary to decide whether the
administrative inquiry was of such a nature as to
require that it be conducted in accordance with
standards of fairness such as would render a find
ing resulting from it subject to review by way of
certiorari or otherwise. Putting aside for the
moment article 6.01 of the collective agreement, it
might be that it would have been unfair to deny
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602, at p. 631.
Mr. Lycan and Mr. Scott the right to be represent
ed by a lawyer retained by their bargaining agent,
the Canadian Air Traffic Control Association.
Whether what is done by a tribunal during an
administrative proceeding is unfair depends on the
facts of the particular case. In the present case, the
presence of article 6.01 in the collective agreement
is a relevant circumstance in considering whether
Mr. Little acted unfairly in refusing Mr. Lycan
and Mr. Scott the right to be represented by a
lawyer retained by their bargaining agent. I agree
with the Chairman of the Board's interpretation of
article 6.01 and with that of Mr. Justice Pratte
and Mr. Justice Heald. Under the article, Mr.
Lycan and Mr. Scott were entitled to be accom
panied by a fellow employee, but not by a lawyer.
They were, in fact, represented by an officer of the
Association. Article 6.01 was agreed to by the
Association as bargaining agent. And I am further
in accord with Mr. Justice Pratte and Mr. Justice
Heald that their employer was not estopped from
relying on it.
In my view, it cannot be considered unfair of
Mr. Little to have insisted on observance of a term
in the collective agreement, particularly when the
circumstances were not such as to estop him from
doing so, and we have decided that they were not.
Thus the refusal in this case to allow legal
representation could not be regarded as a denial of
a principle of administrative fairness, even if it
were assumed that principles of fairness were ap
plicable. Nor can it, in my view, constitute an
interference, under subsection 8(1) of the Public
Service Staff Relations Act, with the right of Mr.
Lycan and Mr. Scott to be represented by their
employee organization.
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.