T-5051-79
Attorney General of Canada (Applicant)
v.
G. Gail Brent and Public Service Staff Relations
Board and P. R. Andrews (Respondents)
Court of Appeal, Grant D.J. —Toronto, October
29 and November 5, 1979.
Prerogative writs — Prohibition — Public Service —
Labour relations — Respondent Andrews was involved in
single vehicle motor accident with departmental vehicle and
assessed $250 as part of the damages, pursuant to statute —
With refusal to pay voluntarily, procedures followed resulting
in Treasury Board's ordering the amount to be set off from
Andrews' salary — Disciplinary procedure not followed —
Matter referred to adjudication on final dismissal of grievance
— On preliminary objection as to jurisdiction, made on ground
that the matter was not disciplinary, Adjudicator found juris
diction — Application for prohibition brought to prohibit
Adjudicator from hearing and deciding on the merits of the
case — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, s. 91(1)(b).
This is a motion for a writ of prohibition prohibiting an
Adjudicator, a member of the Public Service Staff Relations
Board, from considering a decision in respect of respondent
Andrews' grievance. Andrews, a civilian employee of the
Department of National Defence, was involved in a single
vehicle motor accident with a departmental vehicle, and after
two investigations, the Director of Law Claims characterized
Andrews' conduct as negligence not of a minor character. As a
result, a demand for reimbursement for $250 as part of the
damages was served on Andrews. The Director of Law Claims
reconfirmed his decision after Andrews was given an opportu
nity to show cause in writing why the amount should not be
deducted from his salary. When Andrews refused to make
voluntary restitution, procedures were instituted resulting in the
Treasury Board's directing that the amount be set off from
Andrews' salary. The procedures established by the Depart
ment of National Defence concerning the discipline of its
civilian employees were not utilized against Andrews. Andrews
filed a grievance, pursuant to section 90 of the Public Service
Staff Relations Act, and after it was denied at the final level,
referred it to adjudication on the ground that it related to
discipline. Counsel for the employer objected to the Adjudica
tor's jurisdiction, arguing that the employer had taken no
disciplinary action against Andrews. When the Adjudicator
found jurisdiction this application was made to prohibit her
from proceeding with the hearing to consider the merits of the
case.
Held, the application is allowed. The act of the Crown in
seeking to recover from the servant compensation for damages
caused by his negligence which is other than of a minor
character can not be said to be the imposition of a penalty
against him nor can it be said to be disciplinary. The steps
taken to collect the $250 were necessitated by the statute and
the Order made thereunder, were directed only to the recovery
of what was justly owing by the grievor, and can not be said to
be either a penalty directed against him or disciplinary. The
fact that the procedure for disciplining a civilian employee was
not followed establishes the fact that the Crown treated it
simply as a procedure for the recovery of the $250 and was not
attempting to impose a penalty. Further, the Adjudicator's
finding that the Crown's purpose in taking the action it did was
to recover the loss it suffered was the proper and only one that
could be made and is inconsistent with the suggestion that the
Crown's attempt to recover was disciplinary or that it amount
ed to a penalty. The grievance, therefore, is excluded from the
ambit of section 91(1)(b). The defect in the Adjudicator's
decision is patent and the order requested will issue.
Jacmain v. The Attorney General of Canada [1978] 1
S.C.R. 15, referred to. Attorney General of Canada v.
Public Service Staff Relations Board [1977] 1 F.C. 91,
considered.
APPLICATION.
COUNSEL:
B. Evernden for applicant.
Rosemary Simpson for respondent P. R.
Andrews.
J. E. McCormick for respondent Public Ser
vice Staff Relations Board.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Rosemary Simpson, Ottawa, for respondent
P. R. Andrews.
J. E. McCormick, Ottawa, for respondent
Public Service Staff Relations Board.
The following are the reasons for order ren
dered in English by
GRANT D.J.: This is a motion by counsel on
behalf of Her Majesty the Queen for a writ of
prohibition, prohibiting G. Gail Brent, Adjudica
tor and Member of the Public Service Staff Rela
tions Board from considering and rendering a deci
sion thereafter in respect of the respondent
Andrews' grievance.
The respondent P. R. Andrews is a civilian
employee of the Department of National Defence
at Camp Borden engaged as a stationary engineer.
On February 23, 1978, he was involved in a motor
vehicle accident while operating a motor vehicle
owned by Her Majesty the Queen necessitating
repairs thereto at a cost of $1,357.29. An investi
gation was conducted by the Base Transportation
Officer at such camp and also a later formal
investigation was held. As a result thereof the
opinion of the Director of Law Claims in the office
of the Judge Advocate General was sought pursu
ant to section 11 of the National Defence Claims
Order, 1970, SOR/70-427. After considering all
facts and reports in respect thereof such Director
characterized Mr. Andrews' conduct in operation
of such vehicle at the time as "Negligence not of a
minor character". As a result thereof a demand for
reimbursement for $250 as part of the damages
was served on Andrews on June 30, 1978. Such
demand set out the particulars of the negligence
alleged against Andrews. It was a one vehicle
collision. Andrews drove the same into a hydro
pole.
Andrews was given an opportunity to show
cause in writing why such amount claimed should
not be deducted from his salary. He replied by
letter of July 11, 1978. He therein made no denial
of the negligence charged against him but com
plained of the fact that he was denied the right to
representation during the initial investigation and
requested that a formal hearing be convened by
the Judge Advocate General to investigate the
whole situation surrounding the demand for reim
bursement and to insure his right to representa
tion. Such submissions were considered by the
Director of Law Claims who still considered
Andrews negligent in a manner that was other
than of a minor character. Andrews refused to
make voluntary restitution of such amount. The
Deputy Attorney General thereupon, pursuant to
section 95(1) of the Financial Administration Act,
R.S.C. 1970, c. F-10, determined that Andrews
was indebted to Her Majesty within the meaning
of such section. Such section reads as follows:
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 authorize 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.
On the 29th day of March 1979 the Treasury
Board passed a minute pursuant to the above
subsection and section 16 of the National Defence
Claims Order, 1970 directing that the debt due the
Crown by Andrews in the sum of $250 be set off
against his salary. The procedures established by
the Department of National Defence pursuant to
section 7(1)(f) of the Financial Administration
Act concerning discipline for misconduct engaged
in by its civilian employees were not utilized
against Andrews.
On the 16th day of September 1978, Andrews
filed a grievance pursuant to section 90 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35. It reads as follows:
I grieve (a) the demand for reimbursement levied against me,
(b) the loss of my 404 driving privileges,
(c) the charge laid against me of being "negligent not of a
minor nature"
(d) the denial of Union representation during the proceedings
leading to the Demand for Reimbursement,
The corrective action requested was as follows:
1. The Demand for Reimbursement be revoked.
2. My 404 driving Privileges be restored.
3. No further action or claims be levied against me in this
matter.
4. Any documentation in this matter be removed from my file
and destroyed.
Andrews received representation from the
Union of National Defence Employees at all three
levels of the grievance procedure and on the 28th
day of March 1978, at the final level of the
grievance procedure, the Deputy Minister of the
Department of National Defence denied the
grievance.
On the 25th day of April 1979, Andrews with
his bargaining agent's approval, referred his griev
ance to adjudication claiming that the grievance
related to discipline. G. Gail Brent, Adjudicator
and Member of the Public Service Staff Relations
Board was appointed to hear and determine the
adjudication. All proper notices of the time and
place of the hearing set for July 25, 1979 were
duly given. Prior thereto counsel for the employer,
the Treasury Board, gave notice to all parties that
he would be objecting to the jurisdiction of the
Adjudicator appointed to hear the matter upon the
grounds that the employer had not taken any
disciplinary action against Andrews and by reason
thereof the grievance was not adjudicable under
section 91 of the Public Service Staff Relations
Act which 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.
Such objection was raised at the commencement
of the hearing and by agreement of the parties
evidence and argument were heard on the prelim
inary question as to whether the Adjudicator had
jurisdiction to hear the matter and that a decision
on such matter should be rendered before any
evidence or submissions would be heard concern
ing the merits of the case. This practice is
approved in Richard v. Public Service Staff Rela
tions Board [1978] 2 F.C. 344.
The Adjudicator delivered her decision on
August 20, 1979 and thereby determined that she
had jurisdiction under section 91(1)(b) to consider
the matter of the claim for $250 made against the
grievor and she remitted the matter to the Regis
trar so that a date could be fixed for the hearing of
the merits in the case. Her reasons set out clearly
and correctly all factual matters involved. It is to
prohibit the Adjudicator from proceeding with
such hearing that this motion is brought.
The Adjudicator ruled that she had no jurisdic
tion to consider the withdrawal of the grievor's
driver's permit and it is my opinion that she was
correct in this respect. I understand that such a
permit is simply an authority from a senior officer
permitting the employee to drive a departmental
vehicle in the course of his duties. The grievor was
advised by the Deputy Minister through letter
dated March 28, 1979, that by virtue of C.F.P.
1585, the Transportation Manual Mobile Support
Equipment, section 6.11, paragraph 3, the return
of the "404" licence was at management's discre
tion and that it was also dependent upon the type
of duties an employee was required to perform in
his position on a daily basis and that his supervisor
would determine when he required such a licence
and would recommend to the Base Transportation
Officer that it be returned to him.
Counsel for the grievor acknowledged that the
grievor had suffered no financial loss by reason of
the temporary suspension of the 404 licence and
accordingly the grievor could not rely upon that
loss to establish jurisdiction.
In this matter the Adjudicator has authority to
adjudicate in respect of the Treasury Board's
minute to the effect that the debt due the Crown
by the grievor in the amount of $250 be set off
against his salary only if the matter involved is
disciplinary action resulting in discharge, suspen
sion or a financial penalty. (Section 91(1)(b).)
Jacmain v. The Attorney General of Canada
[1978] 1 S.C.R. 15—de Grandpré J. at page 33.
Under section 90 of the Act the grievor is
entitled to present his grievance at each of the
levels, up to and including the final level. Beyond
that to seek adjudication his grievance must fall
within the four corners of section 91(1) thereof.
Jacmain v. The Attorney General of Canada
(supra) at page 34 and in the Federal Court of
Appeal Attorney General of Canada v. Public
Service Staff Relations Board [1977] 1 F.C. 91
at 98.
As there was no discharge or suspension in this
case the grievor's right to adjudication depends on
the phrase "disciplinary action resulting in ... a
financial penalty". The Shorter Oxford English
Dictionary cites meanings of the word "discipline"
as "to bring under control. ... To inflict peniten
tial discipline upon; hence, to chastise, thrash,
punish" and for the word "penalty": "A punish
ment imposed for breach of law, rule, or contract;
f)
The words "financial penalty" in their ordinary
meaning relate to financial loss due to punitive
action against the payor such as a fine as com
pared to an attempt by the employer to recoup
moneys he has lost due to the employee's
negligence.
The act of the Crown in seeking to recover from
the servant compensation for damages caused by
his negligence which is other than of a minor
character can not be said to be the imposition of a
penalty against him nor can it be said to be
disciplinary. Section 15 of the National Defence
Claims Order, 1970 provides that where an opin
ion is given by the Judge Advocate General's office
to the effect that the Crown has a claim against its
public servant by reason of his negligence which is
not of a minor character that "a demand ... shall
be made and enforced on the public servant".
Therefore the steps taken to collect the $250 were
necessitated by the statute and the Order made
thereunder and were directed only to recovery of
what was justly owing by the grievor and can not
be said to be either a penalty directed against him
nor was it disciplinary.
In Jacmain v. The Attorney General of Canada
the question was whether or not the rejection of an
employee on probation because of his superior's
dissatisfaction with his conduct constituted disci
pline action subject to adjudication. In the Federal
Court of Appeal Heald J., speaking for the Court
stated at page 99:
There could only be disciplinary action camouflaged as rejec
tion in a case where no valid or bona fide grounds existed for
rejection.
In an arbitration proceeding initiated by United
Electrical, Radio & Machine Workers, Local 524,
re Canadian General Electric Co., Ltd., in 1954,
[Labour Arbitration Cases, 1955, p. 1939] Bora
Laskin (now Chief Justice of Canada) was chair
man of the board. In the award he wrote as follows
[at p. 1942]:
It is important to recognize the difference between discipline
involving a sanction which does not represent compensation or
recoupment for loss suffered by the Company, and compensato
ry measures that are designed to offset a loss caused by an
employee.
The procedure followed when a civilian
employee is disciplined is set out in exhibit 4. The
Adjudicator states on page 4 of her determination
that there is no dispute that those proceedings
were not followed in this case. This establishes the
fact that the Crown treated it simply as a proce
dure for recovery of the $250 and was not attempt
ing to impose a penalty.
The Adjudicator in her reasons stated at page
11:
The employer's assessment of fault or responsibility for the loss
it suffered led it to take action against the grievor for the
recovery of the loss it suffered, up to the limits allowed by law.
[Emphasis added.]
This is a finding that the purpose of the Crown
in taking the action it did was to recover the loss it
suffered. On the material filed on this motion such
decision appears to be the proper and only one that
could be made as to the purpose which prompted
the Crown's procedure. Such finding is also entire
ly inconsistent with the suggestion that the
Crown's attempt to recover was disciplinary or
that it amounted to a penalty and so excludes the
grievance from the ambit of section 91(1) (b).
Further at pages 11 and 12 of such reasons it is
stated:
Accordingly, I find that the claim for $250.00 to be deducted
from the salary of the grievor is a "disciplinary action",
(because it was taken in response to some alleged "voluntary
malfeasance" on the part of the grievor) which resulted in a
financial penalty (the assessment of $250.00) within the mean
ing of paragraph 91 (1)(b) of the Public Service Staff Rela
tions Act.
The error contained in such finding is that it
labels the attempts by the Crown to recover as
"disciplinary action" simply because the act of the
grievor may have amounted to voluntary malfeas
ance or negligence. In other words attempts by the
Crown to recover a debt owing to it by its servant
must be considered to be disciplinary action in all
cases where the servant has been at fault. Such
statement overlooks the fact that it is the action of
the Crown which is to be considered in determin
ing as to whether disciplinary action has been
taken as opposed to a legitimate proceeding to
recover a debt owing. Such reasoning leads to the
erroneous proposition that whenever the grievor's
action amounts to negligence causing loss to the
Crown any action taken by way of recovery is
disciplinary within the meaning of such section.
For these reasons I find that the only reasonable
conclusion that could be drawn by the Adjudicator
herein is that there was no element of disciplinary
action in the proceedings taken by the Crown
against the grievor P. R. Andrews and that he
suffered no financial penalty thereby. The defect
in the decision appealed from is patent and there
fore the order requested should issue.
A writ of prohibition should therefore issue pro
hibiting G. Gail Brent, Adjudicator and Member
of the Public Service Staff Relations Board from
further considering and rendering a decision in
respect of the grievance filed by the respondent P.
R. Andrews herein.
The applicant may have its costs of the motion
from the respondent Andrews.
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.