A-592-79
James Francis Burchill (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Thurlow C.J., Jerome A.C.J. and
Urie J.—Ottawa, May 9 and 20, 1980.
Judicial review — Public Service — Applicant brought a
grievance to determine whether his acceptance of a term posi
tion affected his indeterminate employee status — Applicant
lost at the final level of the grievance procedure, and took the
matter to adjudication on the ground that his being laid off
from the term position without such rights provided by Trea
sury Board for the protection of indeterminate employees, was
disciplinary action resulting in discharge within the meaning of
s. 91(1) of the Public Service Staff Relations Act — Whether
the Adjudicator had jurisdiction to consider applicant's griev
ance — Application dismissed — It is only a grievance that
has been presented and dealt with under s. 90 and that falls
within the limits of s. 91(1)(a) or (b) that may be referred to
adjudication — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, ss. 90, 91(1) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
J. F. Burchill for himself.
W. L. Nisbet, Q.C. for respondent.
SOLICITORS:
J. F. Burchill, Ottawa, for himself.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: We do not need to hear you,
Mr. Nisbet.
The question dealt with by the Adjudicator was
whether he had jurisdiction to consider the appli
cant's grievance. He dealt with the matter by
considering the applicant's assertion that his being
laid off was disciplinary action resulting in dis
charge within the meaning of subsection 91(1) of
the Public Service Staff Relations Act, R.S.C.
1970, c. P-35, and, after a hearing that lasted
some six days, concluded that the action was not
disciplinary.
As presented, the applicant's grievance asserted
only the contention that his acceptance of a term
position at the Anti-Inflation Board did not affect
his indeterminate employee status, that he was
therefore entitled to the special provisions made by
the Treasury Board for indeterminate employees
and that termination of his employment at the
Anti-Inflation Board without such rights provided
by the Treasury Board for the protection of
indeterminate employees therefore constituted
wrongful dismissal. He asked for application of his
alleged rights.
The only question thus submitted for determina
tion in the grievance procedure was whether the
applicant still had indeterminate status or tenure
notwithstanding his acceptance of a term position.
That question was determinable at the grievance
level but was not referable to adjudication under
subsection 91(1).
In our view, it was not open to the applicant,
after losing at the final level of the grievance
procedure the only grievance presented, either to
refer a new or different grievance to adjudication
or to turn the grievance so presented into a griev
ance complaining of disciplinary action leading to
discharge within the meaning of subsection 91(1).
Under that provision it is only a grievance that has
been presented and dealt with under section 90
and that falls within the limits of paragraph
91(1)(a) or (b) that may be referred to adjudica
tion. In our view the applicant having failed to set
out in his grievance the complaint upon which he
sought to rely before the Adjudicator, namely, that
his being laid off was really a camouflaged disci
plinary action, the foundation for clothing the
Adjudicator with jurisdiction under subsection
91(1) was not laid. Consequently, he had no such
jurisdiction.
We add, however, that we have not been per
suaded, as the learned Adjudicator was not per
suaded, that the action of the Anti-Inflation Board
in terminating the applicant's employment was a
disguised disciplinary action. Nor do we think that
the Adjudicator's conclusion on the facts before
him, that he was without jurisdiction, was
erroneous.
The application, therefore, fails and it will be
dismissed.
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.