PUBLIC SERVICE |
Gannon v. Canada (Attorney General)
A-43-04
2004 FCA 417, Malone J.A.
7/12/04
12 pp.
Appeal from Federal Court (F.C.) order ((2003), 244 F.T.R. 124) dismissing application for judicial review of Adjudicator's March 20, 2002 decision--Appellant, whose employment governed by Financial Administration Act (FAA) and Public Service Staff Relations Act (PSSRA) suspended, then terminated from Department of National Defence (DND) --Adjudicator allowing grievance with respect to termination, awarding six months' compensation in lieu of reinstatement-- F.C. applying patently unreasonable standard of review to dismiss application for judicial review of that decision-- S.C.C., in appeal dealing with competence of Alberta arbitration board, more recently applying reasonableness simpliciter standard of review--Not necessary to determine which standard appropriate here as Adjudicator's decision patently unreasonable--In cases under Canada Labour Code, F.C.A. upholding decisions where compensation ordered in lieu of reinstatement--Crown arguing that jurisdiction of adjudicator appointed under PSSRA substantially same as that of adjudicator appointed under Code, Part III--No reference made to provisions in FAA, PSSRA suggesting Adjudicator having remedial powers similar to those found in Code--No evidence Treasury Board, which has primary responsibility for matters of personnel management in public service, having established standards, guidelines justifying remedy devised by Adjudicator--Crown providing no answer to appellant's argument FAA, s. 11(4) depriving DND of lawful authority to terminate employment except for cause--Adjudicator ignoring FAA, s. 11(4)--No law giving Adjudicator authority to impose monetary payment in lieu of reinstatement referred to--Adjudicator's findings should have led to appellant's reinstatement--Appeal allowed --Financial Administration Act, R.S.C., 1985, c. F-11, s. 11(4) (as enacted by S.C. 1992, c. 54, s. 81)--Public Service Staff Relations Act, R.S.C., 1985, c. P-35--Canada Labour Code, R.S.C., 1985, c. L-2.