PUBLIC SERVICE
Jurisdiction
Judicial review of decision of adjudicator appointed under Public Service Staff Relations Act (PSSRA), s. 92—Respondent, lawyer with Veterans Affairs Canada, ordered by Department’s Director General, Human Resources Division, in compliance with Conflict of Interest and Post-Employment Code for the Public Service, to refuse $5,000 bequest provided in will of veteran’s widow respondent had assisted five years before and had not been in contact with since—Respondent complied, then grieved decision—As grievance unsuccessful at all levels, respondent referred matter for adjudication under PSSRA, s. 92, commenced application for judicial review of final grievance decision—Applicant herein seeking to set aside adjudicator’s decision on basis adjudicator had no jurisdiction under PSSRA, s. 92, erred on merits of case by finding no conflict with Code—Application allowed—PSSRA, s. 92(1)(b)(i) requiring, for adjudicator to have jurisdiction, “disciplinary action resulting in suspension or a financial penalty” in respect of employee—Adjudicator, having noted employee refusing to comply with Code “subject to appropriate disciplinary action up to and including discharge” (s. 33), of view not necessary for employee to breach order before having recourse to adjudication— Adjudicator of view reasonable to expect if respondent had refused to return bequest, would have been disciplined and some financial penalty would have been applied, thus meeting criterion of “disciplinary action resulting in suspension or a financial penalty”—Adjudicator basing jurisdiction on apprehended disciplinary action, apprehended financial penalty —Standard of review on jurisdictional issue reasonableness simpliciter: applying language of PSSRA, s. 92(1)(b)(i) to facts of case to determine whether matter “disciplinary action resulting in suspension or financial penalty” mixed question of fact and law—Adjudicator’s decision matter coming within language of PSSRA, s. 92(1)(b)(i) unreasonable—Provision referring to actual disciplinary action resulting in suspension or financial penalty, not possible disciplinary action—Fact adjudication not open to respondent not leading to serious injustice as possible to seek judicial review of final grievance decision in Federal Court—Unreasonable of adjudicator to interpret phrase “disciplinary action” as including possible, or even probable, disciplinary action—Not necessary to decide whether “financial penalty” herein in forced return of bequest —For present purposes, sufficient to say could not have been financial penalty “resulting” from disciplinary action as no disciplinary action taken—In view of decision on matter of jurisdiction, unnecessary to review decision on merits—Merits can be addressed on judicial review of final grievance decision—Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 92(1)(b)(i) (as am. by S.C. 1992, c. 54, s. 68).
Canada (Attorney General) v. Assh (T-1596-04, 2005 FC 734, Strayer D.J., order dated 24/5/05, 10 pp.)