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A-737-81
Rémi St-Louis (Applicant)
v.
Treasury Board (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Hyde D.J.—Montreal, November 4 and 5, 1982.
Public service — Conflict of interest — Applications to review and set aside — Department of National Revenue auditor discharged for having done accounting work for third parties outside office hours, contrary to employer's conflict of interest guidelines — Referred to adjudication, grievance against discharge upheld in part only, penalty being reduced to 27 months suspension — Adjudicator's decision to hear griev ance in camera not prejudicial to applicant — Adjudicators acting under Public Service Staff Relations Act not required by law to hold hearing in public — Guidelines in conformity with standards of discipline established by Deputy Minister — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Terms and Conditions of Employment Regula tions, SOR/67-118, s. 106.
Judicial review — Applications to review — Public Service — Employee discharged for conflict of interest — Grievance referred to Adjudicator Hearing in camera — No statutory requirement for public hearing — Applicant not prejudiced — Application dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The applicant, an auditor at the Department of National Revenue, Taxation, was discharged for having done accounting work for third parties outside office hours, in breach of his employer's conflict of interest guidelines. His grievance against the discharge was referred to adjudication. The Adjudicator decided to hear this grievance in camera to avoid causing prejudice to third parties. He found that the applicant had on numerous occasions violated his employer's conflict of interest guidelines but, considering the penalty too harsh, reduced it to suspension for 27 months. The applicant argues that the Adjudicator improperly ordered the exclusion of the public and that such exclusion caused him prejudice. He further argues that the standards of discipline which he allegedly breached have never been validly brought into effect.
Held, the application should be dismissed. The decision to hold the adjudication in camera, made for a legitimate purpose, caused no prejudice to the applicant. Furthermore, adjudicators acting under the Public Service Staff Relations Act are not expressly required by law to hold hearings in public. The specific guidelines which the applicant violated were in con formity with the standards of discipline validly established by the Deputy Minister.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Scott v. Scott, [1913] A.C. 417 (H.L.).
REFERRED TO:
Re Legal Professions Act and The Benchers of the Law Society of British Columbia, [1945] 4 D.L.R. 702 (B.C.C.A.).
COUNSEL:
Rolland Pépin for applicant. Robert Lee for respondent.
SOLICITORS:
Rolland Pépin, Montreal, for applicant. Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: This is an application under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] to set aside a decision of an Adjudicator who, acting under the Public Service Staff Relations Act [R.S.C. 1970, c. P-35], upheld in part only the grievance the applicant had pre sented following his discharge.
The applicant was an auditor at the Department of National Revenue, Taxation. He was dis charged on October 11, 1979 because he had often, outside office hours, done accounting work and prepared tax returns for third parties. He presented a grievance against his discharge. The grievance was referred to adjudication. The Adjudicator found that the applicant had on numerous occasions violated his employer's con flict of interest guidelines, which apparently pro hibited activities such as those in which the appli cant had engaged. However, the Adjudicator ruled that discharge was too harsh a penalty. He accord ingly reduced the penalty imposed to suspension for 27 months.
It is that decision which the applicant is now disputing. He raised a number of arguments in support of his appeal. As we stated at the hearing, it seems to us that only two of them are worthy of consideration.
The first of these arguments concerns the fact that the Adjudicator decided to hear the grievance
in camera in order to protect the confidentiality of the information contained in the accounting docu ments prepared by the applicant outside working hours. To adopt the expression used before us, the Adjudicator wished to protect the [TRANSLATION] "financial privacy" of those for whom the appli cant had worked.
Counsel for the applicant objected to this exclu sion of the public, which, he maintained, pre judiced his client by allowing the employer's wit nesses to testify in private. This argument seems to us to be without foundation. It cannot be said that the applicant suffered any prejudice whatsoever as a result of the adjudication being held in camera. We nonetheless decided to hear counsel for the respondent on this point because for a while we wondered whether the very strict rules governing public hearings in the courts (see Scott v. Scott, [1913] A.C. 417 (H.L.)) did not also apply to adjudication hearings. We came to the conclusion that this was not the case. Adjudicators acting under the Public Service Staff Relations Act are in the same situation as tribunals other than the courts which are not expressly required by law to hold hearings in public; they are not governed by the rules applicable to the courts, although it is desirable for them to apply the same principles (see the British Columbia Court of Appeal's deci sion in Re Legal Professions Act and The Bench- ers of the Law Society of British Columbia, [1945] 4 D.L.R. 702 (B.C.C.A.)).
Returning to the matter we are concerned with, I do not think that the Adjudicator's decision to proceed in camera is open to criticism since it was made for the legitimate purpose of avoiding preju dice to third parties who were in no way involved in the adjudication.
The second argument of the applicant that must be considered is more difficult to formulate. I hope I am doing it justice by setting it out as follows. The applicant could be discharged only for mis conduct or a breach of standards of discipline validly established by the Deputy Minister under section 106 of the Public Service Terms and Con ditions of Employment Regulations [SOR/67- 118]. The conduct in which the applicant allegedly
engaged could not be characterized as misconduct; nor could it, again according to the applicant, be regarded as a breach of discipline since it was not proved that the prohibition against the applicant and his colleagues performing accounting work outside office hours was ever validly brought into effect by the Deputy Minister.
The answer to this argument, in my view, is that it is beyond dispute that in acting as he did, the applicant violated specific guidelines of which he had been informed and that it was not proved that these guidelines were not in accordance with the standards of discipline established by the Deputy Minister.
For these reasons I would dismiss the applica tion.
RYAN J. concurred. HYDE D.J. concurred.
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