T-326-78
Attorney General of Canada (Applicant)
v.
Pierre André Lachapelle and Public Service Staff
Relations Board (Respondents)
and
Jean-Paul Baril (Mis -en-cause)
Trial Division, Marceau J.—Montreal, March 6;
Ottawa, March 17, 1978.
Jurisdiction — Prerogative writs — Prohibition and certio-
rari — Application for prohibition enjoining respondents to
abstain, because of lack of jurisdiction, from considering
grievance of mis -en-cause — Application for certiorari to set
aside adjudicator's preliminary decision affirming jurisdiction
— Mis -en-cause given warning letter and applied to respond
ent Board for adjudication — Letter not involving discharge,
suspension or financial penalty - Whether or not adjudicator
had jurisdiction because of terms of collective agreement —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss.
91(1)(a),(b),(2)(a),(b) — Collective Agreement: Postal Opera
tions Group (non-supervisory) Internal Mail Processing and
Complementary Postal Services, article 10.01.
Applicant seeks a writ of prohibition enjoining respondents to
abstain from considering the merits of a grievance referred to
adjudication by the mis -en-cause, on the grounds that the
respondents lacked jurisdiction, and a writ of certiorari to set
aside the adjudicator's preliminary decision holding that he had
jurisdiction to deal with the matter. Mis -en-cause, a postal
worker, filed the grievance after receiving a warning letter that
would be placed on his record. Dissatisfied with the results of
the grievance at various levels, he applied to respondent Board
for adjudication. The employer objected to the Board's jurisdic
tion because the letter did not involve discharge, suspension or
financial penalty. The designated adjudicator held, in a prelim
inary decision, that the grievance was subject to adjudication
under section 91 of the Public Service Staff Relations Act
because of the terms of an article in the collective agreement
imposing the burden of proof of just cause on the employer in
"cases of discharge and discipline".
Held, the writ of prohibition will issue. Only section 91(1)(b)
may be applied to determine the right of the mis -en-cause to
submit his grievance to adjudication and to determine the au
thority of the adjudicator to hear it. An article in the collective
agreement governing the labour relations of the parties does not
allow respondents to cite section 91(1)(a) as a basis for claim
ing a jurisdiction clearly denied them by paragraph (b). Parlia
ment intended to begin with an overall consideration of all
grievances involving disciplinary action against individuals and
then to eliminate all those dealing with disciplinary action
entailing discharge, suspension or financial penalty. Paragraph
(b) is specific, complete in itself and applicable to all employees
whether or not they are covered by a collective agreement. It is
the only provision applicable when the grievance concerns
disciplinary action. This grievance does not concern "the inter
pretation or application in respect of a provision of a collective
agreement" in the sense that these terms are used in section
91(1)(a).
APPLICATION.
COUNSEL:
Annie Côté-Pistono for applicant.
No one for respondents.
Mr. Beaulieu for mis -en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
No one for respondents.
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for mis -en-cause.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: By his application in this case the
Attorney General of Canada is requesting a writ of
prohibition to be issued enjoining respondents—an
adjudicator for the Public Service Staff Relations
Board and the Board itself—to abstain, in view of
their lack of jurisdiction, from considering on its
merits the grievance referred to adjudication on
March 3, 1977 by the mis -en-cause, an employee
of the Post Office Department of Canada. Since
respondent adjudicator has already affirmed the
existence of his jurisdiction by a preliminary deci
sion, the application also requests that a writ of
certiorari be issued in order to set aside that
decision.
It is the mis -en-cause who has appeared to
contest the application. His counsel put forward
mainly substantive arguments, and these must be
examined. He also made the alternative claim that
at this stage in the adjudication proceedings the
application was premature and untimely. This
claim cannot succeed and should be disposed of as
a preliminary.
Counsel admitted that the conditions for exer
cising the supervisory power conferred on the
Court by section 18 of its enabling legislation do
exist, and that neither section 28 of that Act nor
the limiting clause contained in section 100(2) of
the Public Service Staff Relations Act, R.S.C.
1970, c. P-35, constitutes an obstacle to the issuing
of the orders that are sought, since on the one
hand the impugned decision is only interlocutory
(In re Anti-dumping Act and in re Danmor Shoe
Company Ltd. [ 1974] 1 F.C. 22), and on the other
hand the challenge is based on a claim of lack of
jurisdiction (see, inter alia, Québec Téléphone v.
The Bell Telephone Company of Canada [1972]
S.C.R. 182; British Columbia Packers Limited v.
Canada Labour Relations Board [1974] 2 F.C.
913). He nevertheless maintains that it would be
untimely for the Court to intervene at this stage
because in any case the position originally taken
by respondent adjudicator might eventually be
examined under section 28 of the Federal Court
Act, once it was affirmed in the final decision to be
pronounced. It will be seen, however, that the facts
in question are straightforward and not in dispute,
that the particulars of the problem of jurisdiction
to be resolved are already clearly established, that
the position taken by respondent adjudicator could
have an immediate and definite impact on the
relations of the parties, and that an immediate
clarification of the situation would certainly be
useful. Everything militates in favour of this
Court's immediately exercising the power and duty
of supervision that falls upon it. The Attorney
General is right to request that the question of
jurisdiction be settled without delay. (See, inter
alia, Bell v. Ontario Human Rights Commission
[1971] S.C.R. 756; Maritime Telegraph & Tele
phone Company Limited v. Canada Labour Rela
tions Board [1976] 2 F.C. 343.) The application
must be examined on its merits.'
I have said that the facts were straightforward.
They are even somewhat unimportant, since the
question to be resolved can easily be stated without
reference to the details of specific cases. These
facts will, however, make it possible to express the
problem in concrete terms, as is necessary in the
' I am speaking, at this preliminary stage, of the application
as a whole without regard to its specific conclusions. In the
final analysis, I would say that an application in certiorari
seems to me a priori inadmissible with regard to a decision
such as the one in question here.
context of legal proceedings. The facts are given in
the affidavit filed in support of the application. On
May 11, 1976 the mis -en-cause, a mail handler in
the Post Office Department, received a letter, a
copy of which was to be placed in his file, alleging
that on the previous May 2 he had, according to
the findings of an internal report, broken a key
used to start a fork lift, and reminding him that
such an action, presumably premeditated, could
constitute a criminal offence. On June 8 he filed a
grievance against the letter, which followed its
appointed course and was presented at each of the
levels provided for in the collective agreement
governing his working conditions, that is the agree
ment signed on December 12, 1975 between the
Treasury Board and the Canadian Union of Postal
Workers for the "Postal Operations Group (non-
supervisory) Internal Mail Processing and Com
plementary Postal Services" (hereinafter referred
to as the applicable agreement or the agreement in
force). Not satisfied with the results, the mis -en-
cause on March 3, 1977 applied to respondent
Board requesting adjudication. The Board acted
on the request and designated respondent as
adjudicator. The employer immediately gave
notice of its objections to the power of the Board
and the designated adjudicator to act on the
request for adjudication. These objections were
based on the fact that the grievance concerned
merely a warning letter that had not led to dis
charge, suspension or a financial penalty. On June
9 the designated adjudicator heard the parties
regarding this question of jurisdiction, and on
December 16 he delivered a preliminary decision
holding that in view of the conditions of employ
ment specified in the applicable collective agree
ment the grievance submitted was subject to
adjudication under the terms of section 91 of the
Public Service Staff Relations Act, and that he
therefore had jurisdiction to deal with it.
Applicant Attorney General maintains that this
decision is erroneous, that the grievance submitted
by the mis -en-cause is not subject to adjudication
and that consequently respondents have no juris
diction to hear and rule on it. It is this claim that
must be allowed or dismissed.
It is clear that consideration must first be given
to the source of an employee's right to submit a
grievance to adjudication by respondent Board, or
more specifically, by an adjudicator or a board of
adjudication acting within the framework of the
rules established by the Board. There is no doubt
as to the reply. This system of adjudication is
established by the Public Service Staff Relations
Act, which makes the Board that it has created
responsible for supervising its implementation. The
source of the employee's right to make use of the
adjudication procedure, and consequently the
source of the power of the Board, or of the
adjudicator that it designates to hear a grievance
that is submitted to it, may therefore only be
found in this Act. Section 91 of this Act specifies
exhaustively when a grievance may be referred to
adjudication, and does not empower anyone to
decide otherwise: it is therefore the Act alone that
must be considered. This reasoning may appear
simplistic, but it is nevertheless worth stating in
order to rebut in advance any attempt to look
elsewhere than in the Act, such as in the appli
cable collective agreement, and specifically in
article 9.23 of the said agreement, which concerns
the grievance and adjudication procedure, for the
source of the employee's right and consequently of
the jurisdiction of the Board or the adjudicator. In
fact, respondent adjudicator quickly dismissed the
argument to this effect made before him and
counsel for the mis -en-cause did not press it in this
Court. I will spend no more time on this point: the
parties in their agreement could not claim to stipu
late contrary to what Parliament has prescribed in
section 91 of the Public Service Staff Relations
Act concerning the right of an employee to make
use of the adjudication procedure.
Section 91 of the Public Service Staff Relations
Act reads as follows:
91. (1) Where an employee has presented a grievance up to
and including the final level in the grievance process with
respect to
(a) the interpretation or application in respect of him of a
provision of a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and his grievance has not been dealt with to his satisfaction, he
may refer the grievance to adjudication.
(2) Where a grievance that may be presented by an
employee to adjudication is a grievance relating to the interpre
tation or application in respect of him of a provision of a
collective agreement or an arbitral award, the employee is not
entitled to refer the grievance to adjudication unless the bar-
gaining agent for the bargaining unit to which the collective
agreement or arbitral award applies signifies in prescribed
manner
(a) its approval of the reference of the grievance to adjudica
tion; and
(b) its willingness to represent the employee in the adjudica
tion proceedings.
It is established that a warning letter such as the
one involved here constitutes disciplinary action
even though it entails no specific immediate penal
ty. The parties do not dispute this point, and this
was the decision of the adjudicator based on previ
ous adjudication decisions which in my view were
correct. A letter of this kind in an employee's file
serves as the first stage in a graduated system of
discipline established in the context of labour rela
tions, and constitutes a black mark likely to have
an effect on the advancement of the person
involved and on the severity of disciplinary action
that may eventually be taken with regard to him.
The grievance therefore does concern disciplinary
action and it was clearly filed as such. Section 91
of the Act thus appears at first to be conclusive,
since under paragraph (1) (b) of that section only
grievances concerning disciplinary action involving
discharge, suspension or a financial penalty may
be submitted to adjudication before the Board.
The collective agreement in effect as of December
12, 1975, however, states the following in the first
paragraph of article 10, which is entitled "Disci-
pline, suspension and discharge":
10.01 Burden of proof
In cases of discharge and discipline the burden of proof of
just cause shall rest with the Employer. Evidence shall be
limited to the grounds stated in the discharge or discipline
notice to the employee.
According to respondent adjudicator this article
completely changes the situation and makes it
possible to avoid the conclusion which at first
seemed unavoidable. He says in his decision that
this provision "stipulates that a disciplinary action
must be for just cause". The claim made by the
mis -en-cause is that the letter placed in his file
constituted a disciplinary action taken without just
cause. Consequently, his grievance involves the
application of a "specific" and "precise" provision
of the collective agreement and although it clearly
cannot be referred to adjudication under para
graph 91(1) (b) of the Act, it can be submitted
under paragraph 91(1) (a). By reasoning in this
way respondent adjudicator took a position direct
ly opposed to another adjudication decision given a
few days earlier (Salter and Pursaga, 166-2-1572
and 166-2-1604), but in his opinion his colleague's
view was not defensible and the reasoning of the
union had to be approved.
The present application is concerned precisely
with the validity of this reasoning.
In my view, this line of reasoning cannot be
allowed.
Firstly, I do not think that paragraphs (a) and
(b) of section 91(1) of the Public Service Staff
Relations Act can be interpreted in isolation from
each other. In enacting this provision Parliament
clearly intended to limit and define the cases in
which an employee, whether or not he was a
member of a union, would be entitled to submit his
grievance to this method of adjudication which it
was establishing and entrusting to the supervision
of the Board that it had just created. It is clear
that Parliament did not intend all grievances to
require the intervention of an official adjudicator
in addition to the levels of the ordinary procedure.
First, in paragraph (a), it considered cases involv
ing some group interest (whence, moreover, the
requirement of subsection 91(2)), and then, in
paragraph (b), it dealt with cases of disciplinary
action in which individual interest is clearly pre
dominant. By expressing itself as it did, Parlia
ment appears to me to have intended to begin with
an overall consideration of all grievances involving
disciplinary action against individuals and then to
eliminate all but those dealing with disciplinary
action entailing discharge, suspension or a finan
cial penalty. In my view, this provision of para
graph (b) is specific, complete in itself and appli
cable to all employees whether or not they are
covered by a collective agreement, and it is the
only provision applicable when the grievance con
cerns disciplinary action. My reply to the objection
that such an interpretation of paragraph (b) might
limit the application of paragraph (a) is that a
specific provision often limits the application of a
more general provision, especially when the two
provisions are enacted successively and when
understanding of the legislation as a whole
requires that this be the case.
Secondly, I doubt that the grievance filed by the
mis -en-cause in the case at bar can be regarded as
actually concerned with "the interpretation or
application in respect of him of a provision of a
collective agreement" in the sense in which these
terms are used in paragraph 91(1) (a). The
requirement that disciplinary action may not be
taken without just cause is general and based
simply on common sense. In formulating article
10.01 the parties to the agreement certainly did
not intend to make this requirement, a specific and
precise rule aimed at making their agreement
more specific, into a rule whose meaning and
significance would in themselves be likely to raise
problems of interpretation and application in prac
tical cases. Moreover, the article must not be given
a significance and an objective that was never
claimed for it: article 10.01 of the agreement
concerns the burden of proof, which may even be
understood in the procedural sense. Giving to such
an article (and to others of the same sort, as for
example "the employer shall be fair" or "the
employer shall not punish an employee without
cause", which do not specify a condition of
employment, and which furthermore no employer
would ever think of disregarding) the effect of
causing all grievances concerning disciplinary
action—regardless of the seriousness of that action
and even though no group interest was involved—
to come within the scope of the adjudication
required by the Act and entrusted to the supervi
sion of respondent Board appears unacceptable to
me because it is not consistent with the Act as I
understand it. Moreover, if it were otherwise, we
would have to conclude that Parliament left it up
to the agreement between the parties to extend at
will the right to adjudication and consequently the
jurisdiction of the adjudicator, at the same time
allowing a quasi-automatic distinction to be made
for all practical purposes between unionized and
non-unionized employees. It cannot be admitted,
however, that such a delegation of power could be
made in such an indirect and camouflaged way,
and it is unthinkable that such a distinction be
tween government employees was intended.
In short, I believe that only paragraph 91(1)(b)
may be applied to determine the right of the
mis -en-cause to submit his grievance to adjudica
tion, and consequently to determine the au
thority of the adjudicator to hear it. The presence
of article 10.01 in the collective agreement govern
ing the labour relations of the parties does not
allow respondents to cite the provisions of para
graph 91(1)(a) as a basis for claiming a jurisdic
tion that is clearly denied to them by paragraph
(b).
The writ of prohibition applied for by applicant
will therefore be issued enjoining respondents, in
view of their lack of jurisdiction, not to hold a
hearing to determine on its merits the validity of
the grievance referred to adjudication by the mis -
en-cause on March 3, 1977.
I do not believe, however, that there are grounds
for issuing at the same time the writ of certiorari
that was sought: the preliminary decision of
respondent adjudicator, taken alone, has no
autonomous legal effect, since it is not within the
prerogatives of the adjudicator to make a general
determination, going beyond the specific case in
question, of his own jurisdiction or that of the
Board. (See: Bell v. Ontario Human Rights Com
mission, supra; In re the Anti-dumping Act and in
re Danmor Shoe Company Ltd., supra.)
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.