A-144-90
Maurice Dansereau, firefighter (Applicant)
v.
Guy Saint-Hilaire, in his capacity as President of
an Appeal Board created pursuant to subsection
31(2) of the Public Service Employment Act,
R.S.C., 1985, c. P-33, Public Service Commission,
a legal entity duly established in accordance with
the provisions of the Public Service Employment
Act, General Administrator, Department of Trans
port, for the purposes of application of the Public
Service Employment Act, Montréal International
Airports Systems Corporate Group (Respondents)
INDEXED AS: DANSEREAU V. CANADA (PUBLIC SERVICE
APPEAL BOARD) (CA.)
Court of Appeal, Marceau, MacGuigan and
Décary JJ.A.—Montréal, October 4 and 5;
Ottawa, October 24, 1990.
Public Service — Termination of employment — Incompe
tence — Public Service Appeal Board approving departmental
recommendation to release longtime employee for incompe
tence — No warning given work unsatisfactory — Board erred
in not finding lack of warning relevant — Private sector rule
requiring warning of possibility of dismissal applicable to
Public Service in absence of unusual or urgent circumstances
— Employer's silence as to incidents occurring before date on
which applicant's performance first questioned waiver of right
to present evidence of earlier conduct although favourable
performance appraisals not absolving employee of past con
duct not specifically criticized — Record so replete with
instances of bad faith, finding of no bad faith gross error.
Judicial review — Applications to review — Public Service
Appeal Board approving departmental recommendation to
dismiss longtime employee for incompetence although no
warning given — Failure to warn vitiating decision to dismiss
for incompetence — Lack of warning not proof of bad faith,
but combined with other evidence may demonstrate bad faith.
This was an application to set aside the Public Service
Appeal Board's approval of a departmental recommendation to
dismiss the applicant for incompetence pursuant to Public
Service Employment Act, section 31. The applicant worked as
a firefighter at the Dorval airport station from 1966 to 1975
when he was promoted to crew chief. Performance appraisals
indicated that applicant had met all requirements until Septem-
ber 1985. In 1986, there was a tragic death in applicant's
family. He was absent from work from February 1, 1987 to
March 24, 1988 due to a criminal charge upon which he was
acquitted. When he returned to work in March 1988, he was
assigned non-supervisory responsibilities. In May he resumed
his duties as captain and was not warned that his performance
was inadequate. In June 1988, however, he received three
unsatisfactory performance reports for the period beginning
September 1985. Two of these were prepared by the applicant's
superior officer who had hoped that the applicant would never
return to work. The Department notified the applicant that it
was recommending his demotion to firefighter for incompetence
in performing supervisory duties. The applicant appealed this
decision. In November, 1988 the appraisal report indicated that
the applicant met the standard required for firefighter. Six days
before the appeal was to be heard, the Department replaced the
demotion recommendation with a dismissal recommendation.
The Appeal Board disallowed the amendment. The Department
sent a new notice informing applicant of the decision to recom
mend his dismissal for incompetence. The applicant appealed
but the Appeal Board upheld the dismissal recommendation,
holding that mere failure to warn of the possibility of dismissal
was not a basis for vacating a decision to dismiss for incompe
tence which is otherwise valid. The Board declined to follow
another Appeal Board's decision in Dickinson v. Department of
National Revenue (Taxation) wherein it was held that an
unequivocal warning is required before dismissing an employee
for incompetence and that failure to warn is proof of bad faith.
The applicant argued that the lack of warning alone was
sufficient to vitiate the decision and also that it showed bad
faith. The issues were (1) whether the lack of warning vitiated
the dismissal recommendation (2) whether the Board was
limited to considering events occurring after September 1985,
the date when the applicant's performance was first questioned
and (3) whether the Board's decision was based on erroneous
findings of fact and made without considering the evidence.
Held (Marceau J.A. dissenting), the application should be
allowed.
Per Décary J.A. (MacGuigan J.A. concurring): (1) The
applicant was entitled to a warning before being dismissed for
incompetence and the Board erred in not finding the lack of
warning relevant and in not considering whether unusual or
urgent circumstances could justify it. The approach in Dickin-
son should have been followed. The general rule followed in the
private sector, that in the absence of unusual or urgent circum
stances an employee should be given a warning before being
dismissed for incompetence, particularly when he has been
performing his duties for a number of years, is applicable to the
Public Service. The type of warning and period for correction
will vary depending on the circumstances.
To leave open the issue of whether the lack of warning itself
vitiated the decision or simply established the employer's bad
faith which vitiated the decision, would be unhealthy for the
administration of justice. The applicant argued it both ways,
although the two approaches are difficult to reconcile with each
other within the same administrative tribunal. Lack of warning
itself is not proof of bad faith, but combined with other
evidence may demonstrate that the employer was not acting in
good faith, if such demonstration is necessary when the absence
of warning itself vitiates a decision to dismiss for incompetence.
(2) The Board erred in allowing the employer to present
evidence of incidents occurring before September 1985. The
employer in the dismissal recommendation limited its allega
tions of incompetence to those appearing in the performance
reports for the period since September 1985. By its silence as to
incidents occurring prior to that date, the employer waived the
right to unearth justification for its dismissal in the earlier
conduct of its employee. Although a favourable performance
report does not absolve all actions by an employee which were
not made the subject of specific complaint, an employer can by
his own actions at the time of the dismissal waive any reference
to a more distant past and set up an estoppel against himself.
(3) The Appeal Board based its conclusion that there was no
bad faith on erroneous findings of fact and without considering
the evidence before it. The record was rife with instances of bad
faith so apparent that the Board could not have concluded that
there was no bad faith without gross error. The Board also
erred in basing its refusal to arrive at a conclusion of bad faith
on R. v. Larsen and Attorney General of Canada v. Loiselle. It
was not interfering in the way in which the Department intend
ed to dispose of the ousted employee to consider whether the
Department had demonstrated bad faith in the manner of
dismissing the applicant.
Per Marceau J.A. (dissenting): (1) The Board did not err in
finding that the lack of warning did not automatically invali
date a dismissal recommendation. A warning is required only if
it can serve some useful purpose. Dismissal for incompetence,
under section 31 of the Act, is usually due to some intrinsic
defect in the incumbent which does not allow him to provide
the expected level of service. A warning may be useful in
determining whether a performance problem is one of discipline
or incapacity, but a valid judgment can be made as to incompe
tence without resorting to a warning.
(2) Nor did the Board err in considéring incidents that
occurred before. September 1985. The Board was not restricted
to a specific and limited period of time in determining whether
the employer was justified in alleging incompetence, especially
as it had to ensure that the allegations were not based entirely
on a reaction prompted by recent events. The general observa
tions contained in annual performance reports do not have
binding evidentiary force. The letter sent to the Public Service
Commission in support of the dismissal recommendation was
not an undertaking not to go beyond the facts it expressly
mentions as that would be giving it a binding force which even
written pleadings in a court of law do not have. The type of
evidence which is admissible in a case of disciplinary dismissal
differs from that which is admissible in a case of dismissal for
incompetence. In the former, the acts of misconduct must be
specified so that the tribunal can be satisfied that they were
committed and were serious enough to warrant the penalty. In
the latter, the evidence could not relate to positive facts of the
same type nor be as strict and precise.
(3) The Court lacked jurisdiction to intervene under Federal
Court Act, paragraph 28(1)(c). The Appeal Board rendered a
lengthy decision in which all the facts were discussed, analysed
and considered. The decision was not made in a perverse or
capricious manner or without regard for the material before it.
The Board could not substitute demotion for dismissal. Once
it was satisfied as to the Department's good faith, and had
recognized that the ousting of the applicant from his position
was justified, it was bound by the recommendation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28(1)(c).
Public Service Employment Act, R.S.C., 1985, c. P-33,
s. 31.
CASES JUDICIALLY CONSIDERED
APPLIED:
Dickinson v. Department of National Revenue (Taxa-
tion), [1987] ABD [8-1] 162 (P.S.C.A.B.); Ahmad v.
Public Service Commission, [1974] 2 F.C. 644;
(1974), 51 D.L.R. (3d) 470; 6 N.R. 287 (C.A.); Puerto
Rico (Commonwealth) v. Hernandez, [1973] F.C. 1206;
(1973), 42 D.L.R. (3d) 541; 15 C.C.C. (2d) 56 (C.A.);
revd [1975] 1 S.C.R. 228; (1973), 41 D.L.R. (3d) 549; 14
C.C.C. (2d) 209.
CONSIDERED:
Hallé v. Bell Canada (1989), 99 N.R. 149 (F.C.A.); R. v.
Larsen, [1981] 2 F.C. 199; (1980), 117 D.L.R. (3d) 377
(C.A.); Attorney General of Canada v. Loiselle, [1981] 2
F.C. 203 (C.A.).
REFERRED TO:
Produits Petro-Canada Inc. v. Moalli, [1987] R.J.Q.
261; (1986), 6 Q.A.C. 114; 26 Admin. L.R. 64; 16
C.C.E.L. 18 (C.A.); Re Service Employees International
Union, Local 204 and Broadway Manor Nursing Home
et al. and two other applications (1984), 48 O.R. (2d)
225; 13 D.L.R. (4th) 220; 12 C.R.R. 86; 5 O.A.C. 371
(C.A.); Re Service Employees' International Union,
Local 204 and Broadway Manor Nursing Home et al.
and two other applications (1983), 44. O.R. (2d) 392; 4
D.L.R. (4th) 231; 10 C.R.R. 37 (Div. Ct.); Canadian
Imperial Bank of Commerce v. Rifou, [1986] 3 F.C. 486;
(1986), 13 C.C.E.L. 293; 86 CLLC 14,046; 25 C.R.R.
164; 72 N.R. 12 (C.A.); Mojica v. Minister of Manpower
and Immigration, [1977] 1 F.C. 458; (1976), 14 N.R.
162 (C.A.).
AUTHORS CITED
Audet, George and Bonhomme, Robert Wrongful Dis
missal in Quebec, 2nd ed., trans. by Thomas E. F.
Brady, Cowansville, Que.: Editions Yvon Blais Inc.,
1988.
Aust, Edward A. The Employment Contract, Cowans-
ville, Que.: Editions Yvon Blais Inc., 1988.
Harris, David Wrongful Dismissal, Rev. and Cons.
Toronto: Richard De Boo, 1990.
COUNSEL:
François Garneau for applicant.
R. Morneau for respondent.
SOLICITORS:
Desjardins, Ducharme, Montréal, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.A. (dissenting): I am sorry, but I
do not share the views of my brother Décary J.A.
With respect, I take the liberty of doubting wheth
er this Court falls within either of the conditions
required by section 28 [Federal Court Act, R.S.C.,
1985, c. F-7] of its enabling Act to intervene and
set aside the Appeal Board's decision. I will try to
explain my viewpoint as briefly as possible.
1. I find no error in the Appeal Board's
approach in terms of law.
First, I do not think that the Board can be
faulted for refusing to agree that the lack of prior
notice automatically invalidated a dismissal
recommendation pursuant to section 31 of the
Public Service Employment Act, R.S.C., 1985,
c. P-33. This is what the Board said on this point:
It was argued that the decision to dismiss the appellant for
incompetence was improper because he was never confronted
with the reasons for his dismissal nor warned that he was in
danger of being dismissed if he did not improve. Though it
seems to be true that the appellant was not formally warned he
might be dismissed if there was no improvement, I cannot allow
the appeal for a reason of this kind.
First, there is no requirement in the Act that such a warning
be given before making the decision to dismiss an employee
pursuant to section 31 of the Act. Second, the dismissal men
tioned in that section is not a disciplinary sanction for miscon
duct deliberately committed by an employee who could make
amends and be encouraged to do so by such a dismissal, * but
the withdrawal of a position or a group of duties from an
employee who is unable to adequately perform what manage
ment is entitled to expect of him, and for reasons completely
beyond his deliberate control, such as some form of incapacity,
inability, inaptitude, fundamental deficiency, inadequacy or
lack of skill or ability. In such a case, even the most serious of
warnings is not likely to significantly change the situation, since
the absence of the expected performance is not attributable
simply to an act of the will but to an intrinsic defect or
weakness in the incumbent which does not allow him to provide
the legitimately expected quality of service. I therefore consider
that mere failure to warn the employee concerned does not
invalidate a decision to dismiss for incompetence taken regard
ing him.
The appellant's representative referred to Dickinson, [1987]
ABD [8-1] 162 (Girard), in which the appeal was allowed
because the employee had not been sufficiently warned of the
risk he ran of losing his job if he did not improve his perform
ance before the decision to dismiss was made. I respect the view
my colleague may have on the point, but I am not persuaded
myself that mere failure to warn an employee of the possibility
of dismissal if he does not improve is a basis for vacating a
decision to dismiss for incompetence which is otherwise valid.
Clearly, it is necessary to ensure that the employee is not really
able to do properly what is expected of him, and a warning may
sometimes be one of the best ways of determining whether the
performance problem identified is one of discipline rather than
incapacity. However, it seems to me that a reasonably valid
judgment can be made on an employee's incompetence without
resorting to such a warning.
I concur in this approach and I think that, in
Hallé v. Bell Canada (1989), 99 N.R. 149
(F.C.A.), the Court has in fact ruled to this effect.
The judgment in Bell Canada was rendered in
connection with section 61.5 (now 242 [R.S.C.,
1985, c. L-2 (as am. by R.S.C., 1985 (1st Supp.),
c. 9, s. 16)]) of the Canada Labour Code [R.S.C.
1970, c. L-1] (as added by S.C. 1977-78, c. 27,
s. 21; 1980-81-82-83, c. 47, s. 27; 1984, c. 39,
s. 11) as the employment in that case was in the
private sector, but the reasoning, which is essen
tially based on the notion that a warning can only
be required if it can serve some useful purpose,
could not differ with respect to employment in the
public sector.
* Ed. Note: This should read "warning".
Second, I also do not feel that the Appeal Board
can be faulted for taking into consideration facts
and incidents that occurred before September
1985. There is in my opinion nothing in law to
compel the Board to restrict itself to a specific and
limited period of time in determining whether the
employer was right in claiming simple incompe
tence, especially as it had to ensure that the allega
tions were not based entirely on a reaction prompt
ed by recent events. It is true that there were
favourable annual performance reports for the
years prior to 1985, and those reports had their
significance, but clearly no binding evidentiary
force can be given to the general observations
contained in that kind of report. I also agree that
there was the letter of August 27, 1989, sent to
the Public Service Commission in support of the
dismissal recommendation, a document which was
to play a central part and be subject to detailed
comment, but to see this as containing an under
taking by the employer not to go beyond the facts
it expressly mentions, it would ultimately have to
be given a binding force which even written plead-
ings in a court of law, which are always subject to
amendment, do not have.
It seems to me that here again what is involved
is the importance of distinguishing between the
two major types of dismissal, disciplinary dismissal
and that based on incompetence. As I said in Bell
Canada, supra, while no one has any trouble dis
tinguishing in conceptual terms between a dismis
sal imposed because of an employee's misconduct
and a dismissal resulting from an employee's ina
bility to perform the duties of his position with the
necessary skills and competence, in practice the
confusion between these two types of dismissal
seems to be quite frequent. This is understandable
as the employee's failure to perform his duties will
often be due to both misconduct and lack of
aptitude, but it can only be regretted. In my
opinion, the distinction between the two types of
dismissal has important consequences for the func
tion which an adjudicator or tribunal may be
required to perform in acting on the employee's
complaint. In the case of a disciplinary dismissal,
the adjudicator or tribunal cannot be satisfied
without evidence that the alleged act or acts of
misconduct were in fact committed and that they
were sufficiently serious to warrant the penalty,
and in this context it is easy to see the function
assumed by rules such as that of prior notice or the
necessity to specify the acts alleged; but in the case
of a dismissal for incompetence, the inquiry is of a
completely different kind and the evidence to be
considered could not relate to positive facts of the
same type, nor be as strict and precise.
2. As regards the facts, I do not agree, and
again I say so with respect, that this Court is
empowered to intervene as part of its review
function.
What is being suggested is that the Appeal
Board should have ruled that the employer acted
in bad faith in recommending that the applicant be
dismissed. In support of this suggestion, certain
actions by the departmental authorities are put
forward: it is especially pointed out that the
Department prepared and issued three appraisal
reports a few weeks apart, two of them relating to
earlier periods; that it deprived the applicant in
practice of his responsibilities as crew chief; that it
sent the applicant to a doctor for a medical check
up without telling him that the doctor in question
was a psychiatrist; that it changed its demotion
recommendation to a, dismissal recommendation at
the last minute; and that, with its recommendation
it sent the Commission a letter containing ambig
uous statements.
My reaction is straightforward. The Appeal
Board rendered a decision of some twenty long
pages written with particular care. The central
part of its decision consisted of reviewing the
evidence in detail and explaining why it had come
to the conclusion that, despite the initially surpris
ing nature of some facts—which were explained by
the highly exceptional nature of the situation as a
whole—the applicant's superiors had acted in good
faith. It is true that no mention was made in the
decision of the letter accompanying the recommen
dation, but this letter concerned the proceeding
before the Commission rather than relations be
tween the applicant and his superiors or co=work-
ers, and as it was intended to be entered in the
record it was certainly not written with any view to
deception. However, quite apart from this letter to
which I myself, as I have already said and I repeat
with respect, attach no conclusive effect, all the
facts cited above were discussed, analysed and
taken into consideration.
The Board rendered this decision at the conclu
sion of a hearing which lasted six days, during
which it was able to hear and question thirteen
witnesses, twelve of them called by the employer,
the applicant's superiors, personnel officers,
co-workers and union representative, and only one
by the applicant, a person who was obviously from
outside and identified as "a salesman".
I simply cannot see, and once again I say this
with respect, how this Court, which does not even
have the transcript of this testimony before it, can
maintain that the Board's finding made in good
faith is erroneous, that it was "made", to use the
language of paragraph 28(1)(c) of the Federal
Court Act itself, "in a perverse or capricious
manner or without regard for the material before
it" and that a conclusion of bad faith must be
substituted for it.
I should mention one final point. I too was
somewhat troubled by the finality of a dismissal
and considered whether the Board should not have
imposed a demotion instead. Had the Department
changed its recommendation belatedly; had the
applicant's superiors not admitted in one appraisal
report that he could perform the duties of an
ordinary firefighter satisfactorily; did most of the
evidence regarding incapacity not relate to the
position of crew chief? On reflection, however, I
realize that the Board could not make a substitu
tion itself. Once it had no further doubts as to the
Department's good faith, as it found the explana
tions given to be satisfactory, and once it recog
nized that the ousting of the applicant from the
position of team leader which he had occupied was
justified on the evidence, the Board was bound by
the recommendation. That is the position adopted
by this Court in two leading cases, R. v. Larsen,
[1981] 2 F.C. 199 and Attorney General of
Canada v. Loiselle, [1981] 2 F.C. 203, and from
which it has never since departed. I admit that the
textual argument put forward in support of these
decisions may be not fully persuasive, but the
argument based on the general scheme of the Act
and the insoluble practical consequences which a
different position would have seem unanswerable.
In any case, I do not think there is any reason to
repudiate the authority of these decisions now. If
they were wrong, in view of their obvious impor
tance it would have been easy for Parliament to
intervene and it has had ample time to do so.
I am accordingly of the opinion that this Court
is not within the conditions required to give effect
to this application to set aside the Board's decision.
* * *
The following is the English version of the
reasons for judgment rendered by
DÉCARY J.A.: The Court has before it an
application to set aside made pursuant to
section 28 of the Federal Court Act from a deci
sion made by a Public Service Appeal Board
chaired by the respondent Saint-Hilaire. That
decision approved the recommendation to dismiss
the applicant for incompetence made by the Gen
eral Administrator, Department of Transport, pur
suant to section 31 of the Public Service Employ
ment Act ("the Act").
FACTS
The main facts are not really at issue. The
applicant was hired by the Department of Trans
port in 1966 as a firefighter at the Dorval airport
station. He was promoted to the position of fire
officer (captain) in 1975. In 1988 the title of this
position was changed to fire crew chief. Until
September 1985 the applicant's appraisal reports
indicated that his performance met all the require
ments and it does not appear that any warning,
reprimand or notice of any kind was given to him
until, in June 1988, he received his performance
report for the period beginning September 1985.
In July 1986 the applicant's daughter died under
tragic circumstances. From February 1, 1987 to
March 24, 1988 the applicant was absent from
work on account of a criminal charge, of which he
was cleared on March 23, 1988 as the result of a
motion of nonsuit made after the Crown had com
pleted its evidence. The hearing before the Appeal
Board disclosed that the applicant's superior offi-
cer, Chief Authier, and some of his colleagues who
had followed the trial hoped that the applicant
would never return to work. In February 1988,
while he was awaiting the outcome of the criminal
proceedings, the applicant received an order to go
to the office of a certain Dr. Brunet for a medical
examination, but was not told that this doctor was
a psychiatrist. The psychiatric examination dis
closed nothing abnormal in the applicant.
The applicant returned to work on March 25,
1988 and was then assigned to duties without
supervisory responsibilities to facilitate his
resumption of work. On May 16, 1988 he resumed
his usual duties of captain, and was not told that
his competence was less than expected or that he
had problems needing correction.
Barely a month later the applicant received, in
the space of one week, namely on June 14, 15 and
22, 1988, three performance reports for the periods
September 1985—August 1986, September
1986—January 1987 and March 1988—June
1988 respectively. These reports, two of which are
identical in all respects, indicated for the first time
in his career performance below the required
standard. Two of these reports were prepared by
Chief Authier. None of them were submitted to
the review committee, despite the favourable
reports which the applicant had received until
September 1985. "Performance appraisal summar
ies" for the applicant were attached to these
reports, but these summaries were neither dated
nor signed.
On receipt of the third report on June 22, 1988,
the Department forthwith and without further
notice removed the applicant from his duties as
crew chief and assigned him to the duties of an
ordinary fireman. On October 27, 1988 the
Department informed him that it had decided to
recommend that he be demoted to the position of
firefighter because of his incompetence in per
forming the supervisory duties of his position as
captain. The applicant then appealed this decision.
On November 18, 1988 the applicant's superior, in
an appraisal report, concluded that his perform
ance met the standard require d for the position of
firefighter.
On April 19, 1989, six days before the appeal of
the demotion recommendation was heard and
without further explanation or warning, the
Department changed its mind and informed the
applicant that the demotion recommendation had
been altered and replaced by a dismissal recom
mendation. On April 25, 1989, at the hearing of
the appeal, the Appeal Board disallowed the
amendment and suggested that the Department
start from scratch, which the Department at once
did by sending the applicant on April 27, 1989 a
notice dated the previous day officially informing
him of the decision taken to recommend his dis
missal from the Public Service for "incompetence
in performing the duties of the position of [cap-
tain]". Also on April 27, 1989, in a more extensive
document a copy of which was not given to the
applicant, the Department sent his dismissal
recommendation to the Public Service
Commission.'
' The relevant passages of this document read as follows:
Reasons for recommendation:
Mr. Dansereau has held his present position since February
6, 1975. The three last appraisal reports prepared regarding
him indicate unsatisfactory performance (copies already sent
to you). The reports cover the periods from September 1,
1985 to August 30, 1986, September 1986 to January 31,
1987 and March 25 to June 22, 1988.
The reports indicate that:
— Mr. Dansereau does not discharge his responsibility of
directing and superintending the daily activities of his
crew;
— Mr. Dansereau is unable to direct and give training
courses;
— during a short period of five and a half weeks an
incident occurred in which Mr. Dansereau made serious
mistakes, jeopardizing the safety of his employees;
— there has been no improvement in Mr. Dansereau's
performance since the previous appraisal reports in
which his performance was below the standard required
by the position;
— although technically he attained a satisfactory level of
performance, Mr. Dansereau demonstrated problems of
integration and interpersonal relations with his col
leagues: he thus created a work atmosphere which could
compromise his safety and that of the other firefighters
in the crew.
In view of this situation, we have no alternative but to
recommend his dismissal pursuant to s. 31 of the Public
Service Employment Act. Mr. Dansereau was told of our
decision and his right to appeal it on April 26, 1989 (copy of
letter attached), and we attach hereto an acknowledgment of
receipt indicating that the letter was hand delivered to Mr.
Dansereau on April 27, 1989.
The applicant appealed to an Appeal Board
from the decision to recommend his dismissal. In
the decision now before the Court, the Appeal
Board upheld the dismissal recommendation.
ARGUMENTS
The applicant submitted several grounds for
review, which I will group as follows:
1. the Appeal Board erred in law in finding that
the lack of a warning did not by itself make the
dismissal recommendation arbitrary or wrong
ful;
2. the Appeal Board erred in law in taking into
consideration facts and incidents that occurred
before September 1985, when the applicant's
performance had never been questioned by the
employer until that date;
3. the Appeal Board based its decision on
erroneous findings of fact and without taking
into account the evidence before it, in not hold
ing that the applicant's employer acted in bad
faith in recommending his dismissal;
and, if none of these three arguments is
accepted,
4(a) the Appeal Board exceeded its jurisdiction
by approving the dismissal recommendation
without any evidence to indicate that the appli
cant was incompetent as a firefighter, the posi
tion he held at the time the recommendation
was made;
4(b) the Appeal Board refused to exercise its
jurisdiction by refusing to exercise the discretion
conferred on it by paragraph 31(3)(b) of the
Act and suggest that the dismissal recommenda
tion be made a recommendation for demotion.
1. Lack of warning
In its decision the Appeal Board acknowledged
that the applicant was never formally warned that
he might be dismissed if he did not improve his
performance. Worse still, not only was the appli
cant never told before June 1988 that his perform
ance did not meet the requirements of his position,
but in fact up to that date he was always told that
his performance was satisfactory.
Counsel for the applicant submitted that this
was a fatal defect in the dismissal recommenda
tion, and he based his contention on Dickinson v.
Department of National Revenue (Taxation) 2 in
which an Appeal Board, with considerable prece
dent and government practice in support, conclud
ed as follows [at pages 164-177]:
The sole issue for determination was whether Mr. Dickinson
received or was entitled to receive notice of the deputy head's
intention to recommend his demotion based on incompe
tence....
As noted, the appellant's sole argument, apart from leading
evidence to the effect that portions of the work review were
incorrect, was to the effect that the department proceeded with
this recommendation in bad faith in failing to bring problem
areas to the appellant's attention, offering him an opportunity
to improve and warning him of the consequences for failing to
do so.
Of critical importance, however, is the question of notice or
warning which is in the realm of fundamental fairness. True,
this inquiry affords the appellant a full right to be heard and
the question of his possible competence in the future is not
within the jurisdiction of this board of inquiry. Nevertheless,
the concept of warning an employee of the consequences of
continued unacceptable performance is more than a formality
or a courtesy to be extended only to employees who are
otherwise well-liked; it is elementary fairness. The department
acknowledged that such warnings, followed by a period during
which performance will be monitored are usually given but that
the extraordinary circumstances of this case required immedi
ate removal without warning. I find that no such circumstances
existed. In point of fact, I find it particularly disturbing to note
the inconsistency between that contention on the one hand and
the fact that the department waited from the first week in
December to the third week in January to find that circum
stances of which it was fully aware at the earlier date warrant
ed precipitous and hasty removal at the latter date. Such a
period, i.e. seven to eight weeks, could equally have served as a
notice period whereby the appellant's shortcomings could have
been pointed out to him with the clear warning that if they
were not overcome by the end of that period his demotion
would be recommended.
In my view, what is required of the employer is a clear and
unequivocal warning of the consequences of the continuation of
specified unsatisfactory performance.
In the field of employer-employee relations such warnings have
long been recognized as essential....
2 [1987] ABD [8-1] 162.
As can be seen from the foregoing, an unequivocal warning is a
primary requirement prior to taking action in the nature of a
demotion or dismissal in the field of labour relations as it
equally is, in my experience, a universal practice in the federal
Public Service. I am not aware of any case under section 31
where such a warning was not given, and in other similar
appeals I have heard involving this department in general and
Mr. Ladd and Mrs. Brown in particular, such a warning has
invariably been given as indeed the department acknowledged.
Again, I see no compelling or extraordinary circumstances
justifying the omission of such a warning in the case before me.
Whether the failure to give such a warning, be it an obligation
imposed by common practice or consistent with fundamental
fairness as set out in the common law, can be seen as related to
the "statutory or other legal obligation" as referred to in
Ahmad, it does indeed represent "proof of bad faith on the part
of those whose observations and judgement are in question." To
reiterate, the appellant was never confronted with the informa
tion on which the department relied in recommending his
demotion and not warned of the consequences of failing to
improve. This is not to say that the appellant was entitled to
some form of inquiry before any such recommendation was
made but rather that he was entitled to be put on notice of his
peril. Therefore, while the evidence as a whole is consistent
with incompetence, it is unknown what the result might have
been had the appellant been reasonably and fairly treated in
terms of the required clear and unequivocal warning related to
identified problems, particularly when such problems were
largely attitudinal, and the attendant consequences.
In the case at bar the Appeal Board refused to
follow Dickinson and dismissed the applicant's
argument in the following language:
I respect the view my colleague may have on the point, but I
am not persuaded myself that mere failure to warn an
employee of the possibility of dismissal if he does not improve is
a basis for vacating a decision to dismiss for incompetence
which is otherwise valid. Clearly, it is necessary to ensure that
the employee is not really able to do properly what is expected
of him, and a warning may sometimes be one of the best ways
of determining whether the performance problem identified is
one of discipline rather than incapacity. However, it seems to
me that a reasonably valid judgment can be made on an
employee's incompetence without resorting to a warning.
It is not clear whether in Dickinson the dis
missed employee relied on the argument that no
warning was given directly—which would of itself
vitiate the decision—or indirectly—which would
establish the employer's bad faith and this would
vitiate his decision. In the case at bar counsel for
the applicant, if I have understood his arguments
correctly, is playing it both ways.
The presence of two approaches neither of
which seems manifestly unreasonable but which
are difficult to reconcile with each other within the
same administrative tribunal, on a matter as fun
damental as that of the employer government's
duty to give an employee warning before dismiss
ing him for incompetence, is not a very healthy
sign in the administration of justice and is an
invitation to resolve the issue which cannot be
refused by a tribunal exercising a superintending
and reforming power, as does this Court here. 3
With respect, in my opinion the approach pre
ferred in Dickinson should in its general outline be
followed rather than that followed in the case at
bar.
In addition to the precedents cited in Dickinson
reference should also be made to those cited by
David Harris, 4 who lays down the general rule
that in the absence of unusual or urgent circum
stances an employee should be given a warning
before being dismissed for incompetence. The
requirement that such a warning should be given is
all the more compelling ,when the employee in
question has been performing his duties for a
number of years. The same rules have been applied
by the Quebec courts.'
Though developed in a non-governmental con
text, I consider that these rules are also applicable
in cases of dismissal from the federal Public Ser
vice for incompetence, and whatever the precise
legal nature of the relations between the employer
government and the Public Service employee. As
appears in Dickinson, the federal government itself
gives effect to these rules when it dismisses an
employee for incompetence.
3 See Produits Petro-Canada Inc. v. Moalli, [1987] R.J.Q.
261 (C.A.), at pp. 226-228; Re Service Employees Internation
al Union, Local 204 and Broadway Manor Nursing Home et
al. and two other applications (1984), 48 O.R. (2d) 225 (C.A.)
and (1983), 44 O.R. (2d) 392 (Div. Ct.), at p. 399.
° Wrongful Dismissal, Toronto, De Boo, 1990, at pp. 3-138
et seq.
5 E. A. Aust, The Employment Contract, Cowansville, Yvon
Biais Inc., 1988, at p. 92; G. Audet and R. Bonhomme,
Wrongful Dismissal in Quebec, 2nd ed., Cowansville, Yvon
Biais Inc., 1988, at p. 69.
I therefore conclude on this point for the pur
poses of the case at bar that when an employee
who has performed the same duties for several
years consistently receives satisfactory perform
ance reports and is not the subject of any serious
criticism by his employer, a presumption results
that he has the necessary competence to perform
the said duties and, in the absence of unusual or
urgent circumstances, the employer cannot dismiss
him for incompetence without telling him of the
mistakes he is alleged to have made, without
giving him an opportunity to correct them and
without indicating to him the risk of dismissal he
runs if they are not corrected. Of course, each case
will be decided on its own merits and the type of
warning and period for correction will vary
depending on the circumstances. 6 In the case at
bar the applicant, having to his credit satisfactory
performance reports and a career which until then
had been without serious reproach in duties he had
performed for over ten years, should in the absence
of unusual or urgent circumstances have been
given a warning before being dismissed, and the
Appeal Board erred in law in not finding this lack
of a warning to be relevant and not considering
whether unusual or urgent circumstances could
justify it.
At the same time, I do not think that the lack of
a warning is in itself proof of bad faith, but I
believe that such a lack combined with other evi
dence may serve to demonstrate that the employer
was not in good faith, if indeed such demonstration
must be made when the absence of a warning in
itself vitiates a decision to dismiss for incompe
tence.
2. Reference to earlier incidents
Counsel for the applicant submitted that the
respondent erred in law in taking into consider
ation facts and incidents which occurred prior to
September 1985, since the applicant's performance
had never been questioned by the employer until
6 The judgment of this Court in Hallé v. Bell Canada (1989),
99 N.R. 149, rendered in the different context of a complaint
for unjust dismissal filed pursuant to section 242 of the Canada
Labour Code, in my opinion means not that as a general rule as
warning is not necessary, but that there is no standard formula
and that an employer does not have to follow "the dismissal
procedure described in its internal directives to the letter".
that time and, on the contrary, had always been
found to be satisfactory. It is in a way a kind of
estoppel which is being set up against the respond
ent Department.
This argument is based on conclusions arrived at
by David Harris' after a review of the applicable
case law. However, while it is true as Harris
observes that
It is a fundamental principle that a master who knowingly
accepts a certain standard of performance of misconduct is said
to condone such cause, and is thereby prohibited from relying
upon such behaviour as grounds for dismissal.
it is also true, as he himself points out further on,
that
Even if the misconduct is shown to be forgiven, such mis
behaviour becomes relevant at a future date, should further
misconduct be demonstrated. Condonation is always subject to
an implied condition of continued good behaviour.
I do not think, then, that a favourable performance
report can be regarded as absolution for all actions
by an employee which may have been open to
complaint in the period covered by the report and
which were not made the subject of any specific
complaint. That would be giving performance
reports an undue importance and finality. The fact
that performance was satisfactory as a whole, that
no specific complaint was made, does not mean
that the report may not have passed over some
action not worthy of mention at the time which
with the passage of time and occurrence of subse
quent events takes on a completely different
aspect. For example, when a decision to dismiss an
employee is made on the basis of a series of actions
that, taken in isolation, would not justify dismissal
or even, initially, being mentioned in a perform
ance report, it would be placing an impossible
burden on the employer to prohibit him from
presenting evidence of earlier actions on the
ground that he did not dismiss the employee at
that time or that no mention was made of them in
his earlier performance reports. When incompe
tence is the cause of dismissal, it is rarely apparent
all at once, and just as an employee of long
standing generally has the right, as I concluded
earlier, to be told of his mistakes before being
dismissed, so an employer should have the right to
go back over incidents in the employee's record
which have become relevant, provided he does not
' Supra, note 4, at pp. 3-159 et seq.
go back too far. Systematically prohibiting an
Appeal Board from going back in time would
amount to shielding from any decision to dismiss
for incompetence an employee whose incompe
tence, as is generally the case, becomes apparent
or takes shape gradually.
Having said that, an employer can still by his
own actions at the time of the dismissal waive any
reference to a more distant past and set up an
estoppel against himself. In the case at bar, in the
dismissal recommendation it sent to the Public
Service Commission on April 27, 1989 the employ
er of its own accord limited its allegations of
incompetence to those appearing in the perform
ance reports for the period since September 1985.
By the silence it maintained at that time regarding
incidents which allegedly occurred prior to Sep-
tember 1985, the employer waived the right to
unearth justification for its dismissal decision in
the earlier conduct of its employee, and the Appeal
Board erred in law in allowing the employer to
present evidence at the appeal hearing of incidents
which occurred before September 1985.
3. Bad faith
In Ahmad' this Court expressed the following
opinion:
Whether or not a person is competent or incompetent for a post
is a matter of opinion, and, in the absence of any special legal
direction, all that the law can imply with regard thereto is that
it must be honestly formed, and that it must, in the first
instance at least, be based upon the observation, by those under
whom he works, of the manner in which the person whose
competence is in question carries out his duties ... in my view,
in the absence of
(b) proof of bad faith on the part of those whose observa
tions and judgment are in question,
a board of review established under section 31 would not be
justified in deciding that a deputy head's recommendation
should not be acted upon .... [My emphasis.]
The employer's bad faith cannot be presumed
and an employee seeking to present evidence of it
has an especially difficult task to perform. It is not
as such a sign of bad faith in an employer to build
a file on an employee and to prepare for a dismis-
8 Ahmad v. Public Service Commission, [ 1974] 2 F.C. 644
(C.A.), at pp. 646-647.
sal over a long period. As the Appeal Board prop
erly pointed out, "it is not bad faith or discrimina
tion to seek to remove from his duties an employee
who is not considered competent to perform
them". However, the file must still be built "hon-
estly" and without "bad faith on the part of those
whose observations and judgment are in question".
Having failed before the Appeal Board in his
attempt to establish his employer's bad faith, the
applicant had an onerous task in convincing this
Court that it could review the Appeal Board's
decision. I do not have to point out that this Court
instinctively recoils from any intervention on ques
tions of fact. In exercising the power to review and
set aside conferred on the Court by
paragraph 28(1)(c) of its enabling Act 9 we will
only intervene
... when the case is one of so gross an error in the appreciation
of the case presented as to indicate not merely a misjudgment
of the effect of marginal evidence but a disregard of material
before the tribunal of such a nature as to amount to an error of
law or to give rise to an inference that some erroneous principle
has been followed ... 10
After a searching examination of the Appeal
Board's decision and the exhibits in the record I
have come to the conclusion, for the following
reasons, that the applicant's argument is valid and
the record is shot through with instances of bad
faith so numerous and so apparent that the Appeal
Board could not have concluded that there was no
bad faith, as it did, without making a gross error.
9 28. (1) ... the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a decision
or order ... made by or in the course of proceedings before a
federal board, commission or other tribunal, on the ground that
the board, commission or tribunal
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
I° Puerto Rico (Commonwealth) v. Hernandez, [ 1973] F.C.
1206 (C.A.), at p. 1208, Thurlow J [as he then was]. This
judgment was reversed on other grounds in [1975] 1 S.C.R.
228 [Commonwealth of Puerto Rico v. Hernandez]. The state
ments quoted have been adopted by this Court, inter alia in
Mojica v. Minister of Manpower and Immigration, [1977] I
F.C. 458, at p. 461. See also Canadian Imperial Bank of
Commerce v. Rifou, [1986] 3 F.C. 486, at p. 497.
Nowhere in its decision did the Appeal Board
refer to the letter of April 29, 1989, which I have
reproduced in note 1: yet this letter is conclusive in
more than one respect. It confined the grounds of
the recommendation to those stated in the last
three performance reports; it did not tell the Public
Service Commission that these three reports were
prepared in the space of one week and that the
first of the reports was not given to the applicant
until some two years after the period covered; it
charged that the applicant had failed to improve
his performance, based on reports which he had
not been given; it did not tell the Commission that
the applicant was currently doing satisfactory
work in the position of an ordinary firefighter; it
indicated to the Commission that there was no
alternative but dismissal when on the basis of the
very same documents, and so for the same reasons,
demotion rather than dismissal was the solution
still being adopted eight days before.
In view of the performance reports prior to
September 1985, concluding that the applicant's
performance met all the requirements, the Appeal
Board could not conclude as it did several times
that "the appellant's performance problems did
not begin when he was charged, but long before",
that "the preceding shows, in my view, that long
before the criminal charges against the appellant
the Department was concerned by his performance
and competence problems" and that "it is clear to
me that well before the appellant's legal troubles
his superiors seriously doubted his competence".
Nowhere in the part of its decision where it
weighed the evidence did the Appeal Board refer
to these performance reports.
In view of the evidence that the applicant's
superior, Chief Authier, hoped he would not return
to work at the station and that two of the perform
ance reports unfavourable to the applicant after
his return to work were prepared by this very
Chief Authier, the Appeal Board could not con
clude that "these were persons whose essential
honesty has not been questioned and whose judg
ment could usually be relied on, and no argument
has been presented to show why they would have
been likely to distort their assessment of the facts
in this case".
Additionally, the Appeal Board erred in using
the judgments of this Court in R. v. Larsen" and
Attorney General of Canada v. Loiselle 12 as a
basis for refusing to draw any conclusion whatever
from the way in which the Department ousted the
applicant from his position. What those cases held
was, in Larsen, that an Appeal Board could not
substitute a demotion recommendation for a dis
missal recommendation, and in Loiselle, that an
Appeal Board could not impose on a deputy head,
before recommending dismissal of an incompetent
employee, the duty to seriously consider the possi
bility of a transfer rather than a dismissal. In the
case at bar one of the questions which the Appeal
Board should have asked itself was the following:
if the employer did what it did and is assumed to
be entitled to do what it did, did it act in good
faith? Contrary to what the Appeal Board main
tained, it is not "becoming involved in the question
of whether the Department could have demoted
him rather than dismissed him" nor "interfering in
the way in which the Department intended to
dispose of the ousted employee" to consider wheth
er the Department, having first demoted the appli
cant to a position in which it thought he was
competent and subsequently changed its mind
about the demotion a few days from the appeal
hearing, and then dismissed him for the same
reasons as those which led it to demote him,
demonstrated bad faith in so doing.
At the hearing counsel for the respondents
argued that the decision to dismiss rather than to
demote was made because of events that occurred
on November 17, 1988. On November 18, 1988 a
special report was prepared on the applicant's
performance in his duties as firefighter, and this
report which was favourable to the applicant did
not even mention those events. The employer
moreover did not explain why it waited until April
1989 before deciding to dismiss on the basis of
events that occurred in November 1988.
" [1981] 2 F.C. 199 (C.A.).
12 [1981] 2 F.C. 203 (C.A.).
In the case at bar, the Department's actions left
the applicant in a very strange position. If he had
done nothing to appeal the demotion recommenda
tion, he would still be a firefighter working for the
Department today. As he appealed it, and as the
Department countered the appeal with a recom
mendation for dismissal, the applicant is now
deprived both of his position as captain and of his
duties as firefighter, though his performance in the
latter duties was regarded as satisfactory by the
employer, which has nevertheless deprived him of
them. That undoubtedly was a fact which should
have been considered by the Appeal Board.
Furthermore, when we assess the following find-
ings—the change in the Department's attitude
regarding the applicant's competence as soon as
criminal charges were laid against him, charges on
which his immediate superior and a number of his
co-workers wanted to see him convicted; the dis
guised attempt to conduct a psychiatric assess
ment; the sudden preparation within the space of a
few days of three unfavourable performance
reports, none of which was reviewed, two of which
are in all respects identical and which cover a
period of nearly three years; the sudden demotion
without warning on receipt of the third report; the
sudden and unexplained change of the demotion
recommendation, six days before the appeal
against the demotion was heard, to one of dismis
sal on the basis of the same documents and rea
sons; the absence of any warning in relation to the
dismissal; the evidence of the applicant's compe
tence in the position from which he was initially to
be demoted; the reference at the hearing before
the Appeal Board to events in a distant past which
the applicant had not been told of until that time;
the sending to the Public Service Commission
without the applicant's knowledge, to justify the
dismissal recommendation, of a letter the content
of which bore little relation to the facts—there can
be no other conclusion but that the Appeal Board
based its conclusion that there was no bad faith on
erroneous findings of fact and without taking into
account the evidence before it.
4. Excess of jurisdiction or refusal to exercise
jurisdiction
In view of the conclusion I have arrived at on
the applicant's first three arguments, it will not be
necessary for me to consider the fourth.
JUDGMENT
For these reasons, .I consider that this section 28
application should be allowed, the decision of the
Appeal Board should be set aside and the matter
referred back to a differently constituted Appeal
Board for reconsideration, on the basis of the
evidence already obtained, including the testimony
heard, and any other evidence which the new
Board may find useful, taking into account the
reasons in this judgment.
MACGUIGAN J.A.: I concur.
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