T-328-80
Attorney General of Canada (Applicant)
v.
Larry A. Roine and the Public Service Staff Rela
tions Board and Barbara J. Robb (Respondents)
Trial Division, Mahoney J.—Ottawa, February 1
and 19, 1980.
Prerogative writs — Prohibition — Labour relations —
Application to prohibit Adjudicator from considering a griev
ance referred to adjudication — Postal clerk incurred shortage
of money at wicket — No suggestion of dishonesty — Appli
cable job description stated errors are responsibility of
employee — Whether Adjudicator has jurisdiction to adjudi
cate under s. 91(1) of Public Service Staff Relations Act —
Application dismissed on ground that Adjudicator had juris
diction to hear grievance because it related to "disciplinary
action resulting in ... financial penalty" — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, s. 91(1).
Attorney General of Canada v. Grégoire [1978] 2 F.C. 11,
followed.
APPLICATION.
COUNSEL:
W. L. Nisbet, Q.C. and H. Newman for
applicant.
J. E. McCormick for respondents Larry A.
Roine and Public Service Staff Relations
Board.
T. A. McDougall, Q.C. and J. West for
respondent Barbara J. Robb.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board,
Ottawa, for respondents Larry A. Roine and
Public Service Staff Relations Board.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent Barbara J. Robb.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The Attorney General seeks a
writ of prohibition, prohibiting the respondent
Roine, Adjudicator and member of the respondent
Board, from considering and rendering a decision
on a grievance referred for adjudication by the
respondent Robb, a wicket clerk employed by the
Post Office Department. The evidence consists
entirely of the affidavit of Harry A. Newman,
counsel for the Treasury Board at the adjudication
hearing and exhibits thereto.
As a result of a financial transaction at her
wicket, Robb incurred a $300 shortage. There is
no suggestion of dishonesty on her part. The appli
cable job description stated "errors in financial
transactions are the responsibility of the
employee". She was approached by her superiors
who indicated that, if she did not make it up, the
$300 would be deducted from her wages. Prior to
disposition of the grievance, Robb paid the $300.
No authorization had been made under subsection
95(1) of the Financial Administration Act.' Her
grievance was denied at the final level of the
grievance process and she referred it to adjudica
tion under subsection 91(1) of the Public Service
Staff Relations Act. 2
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.
The grievance seeks a determination that, in the
particular circumstances, the shortage was man-
agement's responsibility and that it, not she,
should pay it.
At the commencement of the hearing, counsel
for the Treasury Board objected to the Board's
jurisdiction on the grounds that the grievance
related to neither the interpretation or application
of a provision of the collective agreement nor to
' R.S.C. 1970, c. F-10.
95. (1) Where, in the opinion of the Minister of Justice,
any person is indebted to Her Majesty in right of Canada in
any specific sum of money, the Treasury Board may author
ize the Receiver General to retain by way of deduction or
set-off the amount of any such indebtedness out of any sum
of money that may be due or payable by Her Majesty in
right of Canada to such person.
2 R.S.C. 1970, c. P-35.
disciplinary action resulting in a financial penalty.
The other circumstances envisaged by subsection
91(1) are plainly not in play. By agreement, that
objection was dealt with as a preliminary matter
and a decision rendered prior to the Adjudicator
hearing evidence or submissions on the merits. The
Adjudicator ruled that he did have jurisdiction,
under paragraph 91(1) (a), to consider the matter
of liability for the shortage; hence this application.
The collective agreement provided expressly that
Robb was entitled to be paid at a specified rate of
pay for the hours worked by her. The Adjudicator
held that the implications of her having paid the
shortage rather than suffer deduction from her pay
was immaterial to the issue of jurisdiction, what
ever its relevance to the merits. That fact certainly
distinguishes this case from that considered by
Grant D.J. in Attorney General of Canada v.
Brent, 3 where subsection 95(1) of the Financial
Administration Act had, in fact, been applied.
In determining that he had jurisdiction under
paragraph 91(1)(a), the Adjudicator relied on Re
Milk & Bread Drivers, Local 647, and Borden Co.
Ltd. 4 That involved a route salesman who had lost,
apparently by theft, a number of tickets,
exchangeable for his employer's products, for the
loss of which, as an express condition of employ
ment, he was financially responsible. It was held:
In the board's view, the grievance, though not specifically so
stating, does imply that the company was in breach of the
collective agreement in not paying him his full wages in accord
ance with appendix "A" to the collective agreement, and
consequently this board has jurisdiction to determine whether
the company was justified in making the pay deduction which it
did.
In view of the decision of the Federal Court of
Appeal in Attorney General of Canada v.
Grégoire, 5 I do not find it necessary to express an
opinion on the validity of that conclusion.
3 [1980] 1 F.C. 833.
4 (1966) 16 L.A.C. 380 at 381.
5 [1978] 2 F.C. 11.
The Grégoire judgment is a difficult one to
apply. In rendering it, Jackett C.J. observed [at
page 12]:
Owing to the paucity of material on which this section 28
application is based, it is important to emphasize, at the outset,
that, if that material does not establish that the Adjudicator did
not have jurisdiction, the section 28 application must be
dismissed.
The facts gleaned from the paucity of material are,
nevertheless, more than superficially similar to
those in this case. There, a postal clerk issued a
money order for a $150.36 cheque that was not
honoured. He had failed to refer the cheque to a
superior before accepting it. That requirement, the
judgment says [at page 12]:
... was apparently justified before the Adjudicator on the basis
of "requirements set forth in the bench-mark position descrip
tion" ....
The Adjudicator held that he had jurisdiction
under paragraph 91(1)(b) because the grievance
arising out of the requirement that he pay the
Department the $150.36 was in respect of "disci-
plinary action resulting in ... financial penalty".
The section 28 application was dismissed.
Perhaps that result was arrived at only because
of the paucity of material before the Court of
Appeal. It remains, however, a decision binding on
me. It is a decision that the recovery from a postal
clerk of an amount lost in a financial transaction
falls within paragraph 91(1) (b) of the Public Ser
vice Staff Relations Act.
ORDER
The application is dismissed. The respondent
Robb is entitled to her costs.
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