G. Mansour Gabriel (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, P.Q., Sep-
tember 11 ; Ottawa, September 28, 1972.
Judicial review—Public Service—Demotion of public serv-
ant—Jurisdiction to review—Federal Court Act, s. 28.
The Trial Division has no jurisdiction to review a decision
to demote a public servant made under the grievance proce
dure set out in the Public Service Staff Relations Act, R.S.C.
1970, c. P-35.
MOTION to strike out statement of claim.
R. Cousineau for defendant, applicant.
The plaintiff in person.
WALsx J.—Plaintiff's declaration sets out
that he submitted a grievance "in view to reach
an internal and friendly settlement", but "to no
avail but provoking an incidental grievance".
The Public Service Staff Relations Act, R.S.C.
1970', c. P-35 sets out in sections 90 1 -99 the
procedure for presenting grievances. Section
95(3) provides:
95. (3) Where
(a) a grievance has been presented up to and including
the final level in the grievance process, and
(b) the grievance is not one that under section 91 may be
referred to adjudication,
the decision on the grievance taken at the final level in the
grievance process is final and binding for all purposes of
this Act and no further action under this Act may be taken
thereon.
Where a grievance is referred to adjudication,
section 96(1) provides:
96. (1) Where a grievance is referred to adjudication, the
adjudicator shall give both parties to the grievance an
opportunity of being heard.
Section 100(1) provides:
100. (1) Except as provided in this Act, every order,
award, direction, decision, declaration or ruling of the
Board, the Arbitration Tribunal or an adjudicator is final
and shall not be questioned or reviewed in any court.
It would appear that the decision to demote
plaintiff, if confirmed by properly conducted
grievance procedures in accordance with the
Act is an administrative one and not subject to
review by any court.
Plaintiff makes the point, however, that the
audi alteram partem rule was completely
ignored, and invokes "natural justice", com
plaining particularly that his demotion in clas
sification was given retroactive effect.
If these claims give him a legal right to be
heard before the Court, and I am not so decid
ing, his right would in any event be to proceed
before the Court of Appeal under section 28 of
the Federal Court Act and not before the Trial
Division.
Defendant's motion for an order striking out
plaintiff's declaration on the ground that it dis
closes no reasonable cause of action should be
maintained in so far as the present proceedings
are concerned, but under the circumstances of
this case, without costs.
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