A-92-81
F. Drouin and A. J. L. Lemoyne (Applicants)
v.
Public Service Staff Relations Board and J. Gali-
peault (Respondents)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, September 22 and October 6, 1981.
Judicial review — Public Service — Application to set aside
a decision of the Public Service Staff Relations Board dis
missing the complaint made by the applicants against their
employer pursuant to s. 20(1)(c) of the Public Service Staff
Relations Act — Written reprimands were placed in appli
cants' files — Grievances were dismissed at all levels —
Applicants filed a complaint with the Board requesting it to
make an order directing the employer to remove the repri
mands from their files — Whether Board loses jurisdiction if
relief is sought which the Board feels it cannot grant —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, ss. 8(2)(c), 20, 90(1), 91(1), 95(3).
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C. for applicants.
Robert Sutherland-Brown and Pierre Hamel
for respondents.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli
cants.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicants are asking the Court
to set aside a decision of the Public Service Staff
Relations Board dismissing the complaint made by
them against their employer pursuant to para
graph 20(1)(c) of the Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35.
The applicants worked in the Department of
National Revenue. In April 1980, they received
from the head of their section a letter reprimand
ing them for using abusive and insulting language
at a meeting which they had attended as repre
sentatives of their Union to discuss certain
administrative policies of the Department. The
section chief warned them that the letter was a
written reprimand that would be placed in their
files. Each of the applicants then took advantage
of subsection 90(1) of the Public Service Staff
Relations Act and filed a grievance demanding
that this disciplinary action be withdrawn. These
grievances were dismissed by the employer at each
of the four levels provided for by the grievance
procedure applicable in the circumstances. They
were not grievances which, under subsection 91(1),
could be referred to adjudication; they had there
fore been finally dismissed and, under subsection
95(3), "no further action under this Act [could]
be taken thereon".' Applicants then filed a com
plaint with the Board under section 20 of the
Subsections 91(1) and 95(3) read 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.
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.
Act. 2 This complaint accused the employer of
infringing paragraph 8(2)(c) 3 of the Act by taking
disciplinary action against officers of the Union to
penalize actions taken by them in the course of
their duties as representatives of the employees.
On the complaint form prescribed by the regula-
2 Section 20 reads as follows:
20. (1) The Board shall examine and inquire into any
complaint made to it that the employer, or any person acting
on its behalf, or that an employee organization, or any person
acting on its behalf, has failed
(a) to observe any prohibition contained in section 8, 9 or
10;
(b) to give effect to any provision of an arbitral award;
(c) to give effect to a decision of an adjudicator with
respect to a grievance; or
(d) to comply with any regulation respecting grievances
made by the Board pursuant to section 99.
(2) Where under subsection (1) the Board determines that
any person has failed to observe any prohibition, to give
effect to any provision or decision or to comply with any
regulation as described in subsection (1), it may make an
order, addressed to that person, directing him to observe the
prohibition, give effect to the provision or decision or comply
with the regulation, as the case may be, or take such action
as may be required in that behalf within such specified
period as the Board may consider appropriate and,
(a) where that person has acted or purported to act on
behalf of the employer, it shall direct its order as well
(i) in the case of a separate employer, to the chief
executive officer thereof, and
(ii) in any other case, to the Secretary of the Treasury
Board; and
(b) where that person has acted or purported to act on
behalf of an employee organization, it shall direct its order
as well to the chief officer of that employee organization.
3 Section 8(2)(c) reads as follows:
8....
(2) No person shall
(c) seek by intimidation, by threat of dismissal, or by any
other kind of threat, or by the imposition of a pecuniary or
any other penalty or by any other means to compel an
employee
(i) to become, refrain from becoming or cease to be, or
(ii) except as otherwise provided in a collective agree
ment, to continue to be,
a member of an employee organization, or to refrain from
exercising any other right under this Act;
but no person shall be deemed to have contravened this
subsection by reason of any act or thing done or omitted in
relation to a person employed, or proposed to be employed, in
a managerial or confidential capacity.
tions, the applicants indicated that they were
asking the Board to make an order directing the
employer to withdraw the letter of reprimand
which had been placed in their files. This is the
complaint which was dismissed by the decision a
quo, solely on the ground that the Board con
sidered it did not have jurisdiction over the case at
bar, because it felt it could not grant the relief
requested by the applicants, since that relief was
the same as that which they had vainly tried to
obtain through their grievances.
In my view, this decision is incorrect. When a
complaint is filed under subsection 20(1), the
Board does not have before it an application for
relief; it has a complaint charging one party with
failing to do what the law required it to do. If after
investigation the Board considers that there were
grounds for the complaint, it must make the order
that seems appropriate to it in the circumstances
from among those it is authorized by law to make;
and the Board must make the order so selected
even though it is relief which the complainant did
not request. Accordingly, if the party who has filed
a complaint under section 20 is asking for relief
which the Board feels it cannot grant, the Board
does not on that account cease to have jurisdiction
and a duty to act on the complaint. In such a case,
however, the Board should, if it considers that the
complaint has merit, see that an order authorized
by the statute is made.
For these reasons, I would allow the application,
set aside the decision a quo, and refer the matter
back to the Board for action on the complaint
made by the applicants, assuming that a complaint
made pursuant to section 20 does not cease to be
within the jurisdiction of the Board solely because
the complainant seeks relief which the Board con
siders it cannot grant.
* * *
RYAN J.: I concur.
* * *
LE DAIN J.: I concur.
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.