| Citation: |
Tobin v. Canada (Attorney General), 2009 FCA 254, [2009] 4 F.C.R. D-6 |
A-368-08 |
Public Service
Termination of Employment
Appeal from Federal Court decision (2008 FC 740) setting aside order reinstating appellant at Correctional Service Canada (CSC)—Appeal raising question of how rules of conduct promulgated by employer in federal public service apply to criminal convictions of public servants employed by CSC—Commissioner of Corrections having delegated authority to establish standards of discipline—Exercising authority by promulgating Commissioner’s Directive No. 060, including Code of Discipline, Standards stemming therefrom—Appellant dismissed from CSC after pleading guilty to criminal harassment—Ordered reinstated because employer not establishing proven link between workplace, off-duty conduct for which dismissed—Adjudicator reaching that decision on basis factors in Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers International Union, Local 9-670, [1967] O.L.A.A. No. 4 (QL) test not met—Applications Judge proceeding on basis of Commissioner’s Standards, not Millhaven Fibres test, even though that issue not raised by parties—Determining proper standard of review for adjudicator’s decision that of correctness—That assessment wrong—Adjudicator expert public service labour relations tribunal, acting squarely within expertise—Proper standard reasonableness—Normally judge dealing only with issues raised by parties, however must be room for courts to intervene where parties’ characterization of issue creating risk of deforming law—Applications Judge rightfully raising issue of standard against which to measure appellant’s conduct—If Commissioner having right to promulgate Code of Discipline, then also having right to assess employee’s conduct against rules set out in Code—Applicability of Commissioner’s Standards to off-duty conduct not arising in way it did in Millhaven Fibres—Many reasons why criminal convictions raising different issues in correctional context than other contexts—These considerations having direct bearing on issues before adjudicator—Failure to apply Commissioner’s Standards unreasonable—Appeal dismissed.
Tobin v. Canada (Attorney General) (A-368-08, 2009 FCA 254, Pelletier J.A., judgment dated August 27, 2009, 33 pp.)