A-284-84
Canada Employment and Immigration Commis
sion, Minister of Employment and Immigration
and Deputy Minister of Employment and Immi
gration, Gaétan Lussier (Appellants)
v.
Dale Lewis (Respondent)
Court of Appeal, Heald, Marceau and Stone JJ.—
Toronto, March 13; Ottawa, May 13, 1985.
Judicial review — Prerogative writs — Public service —
Certiorari — Deputy Minister's decision to dismiss respondent
for cause quashed on ground rules of procedural fairness
denied in investigation — Whether respondent made aware of
case against him prior to interview — Right to be treated
fairly — Certiorari matter of discretion where adequate alter
native remedy — Adjudication of grievance process curing
procedural defect in investigation — Adjudication providing
opportunity of being heard by independent party, for witnesses
to be summoned and for enforcement of adjudicator's decision
— Failure to file notice of adjudication not justifying recourse
to certiorari — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 18.
Public service — Employment and Immigration Commis
sion employee accused of assaulting immigration detainee —
Dismissal — Grievance procedure unsuccessful — Certiorari
quashing dismissal granted on ground investigation leading to
dismissal disregarding procedural fairness rules — Whether
such rules applicable — Whether respondent made aware of
complaint against him prior to investigation — Adjudication
of grievance process adequate alternative remedy to certiorari
— Failure to file notice of adjudication insufficient basis to
quash dismissal — Adjudication process curing procedural
defect in investigation — Appeal allowed — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, ss. 90, 91(1)(b),
96(1),(2),(3),(4),(6), 99(3) — Public Service Terms and Condi
tions of Employment Regulations, SOR/67-118, s. 106 —
P.S.S.R.B. Regulations and Rules of Procedure, C.R.C., c.
1353, ss. 79(1), 89(1) — Immigration Act, 1976, S.C. 1976-77,
c. 52, ss. 110, 111 — Financial Administration Act, R.S.C.
1970, c. F-10, ss. 7(1)(i),(2).
Two Investigating Committees were set up to inquire into
incidents which had occurred at one of the Immigration
Department's detention centres. Those incidents involved the
respondent and another immigration officer. The respondent
was advised of the investigation and invited by both Commit
tees to make representations before each of them. He chose not
to participate before the Committee dealing more specifically
with his case. The Deputy Minister, acting on the recommenda
tion of the Committee, discharged the respondent from employ
ment as an immigration investigator on the ground that he had
assaulted an immigration detainee. The respondent pursued the
grievance process to the final level without success. He was,
however, successful in having the decision to dismiss him
quashed by the Trial Division on the ground that the investiga
tion leading to his dismissal had disregarded some of the rules
of procedural fairness. The respondent argued that he had been
denied procedural fairness in that he had not been informed of
the complaint made against him prior to the interview with the
Committee. The appellants seek to quash the order for certio-
rari on the grounds that the respondent was afforded adminis
trative fairness and that the order was not justified since an
alternative remedy was available in the form of adjudication
pursuant to paragraph 91(1)(b) of the Public Service Staff
Relations Act.
Held, the appeal should be allowed.
Per Stone J. (Heald J. concurring): While the respondent
was not entitled to the panoply of protections afforded by the
principles of natural justice, including those of a full hearing
into the complaint, he was nevertheless entitled to be treated
fairly. This is particularly true where, as in the present case, the
investigating function and the function of deciding what form
of discipline should be imposed are carried out by two different
bodies.
The appellants assert that the respondent was made aware of
the complaint against him through his fellow immigration
officer and his union representative. There is no clear evidence
to that effect. Disclosure by the Committee of the allegations
under investigation to the union representative cannot be treat
ed as disclosure to the respondent. The union representative
merely informed the respondent that the matter was of a
"serious nature". There is no evidence that she conveyed to him
the detailed allegations related to her by the Committee.
Furthermore, knowledge on the respondent's part that his
conduct was under investigation cannot be inferred from the
fact that he retained counsel.
The decision to grant certiorari is one of discretion where, as
in this case, there exists a possible alternative remedy. That
remedy must, however, be adequate in the eyes of the law. In
deciding whether such remedy existed, the Court examined the
legislation relating to the adjudication of a grievance arising
out of dismissal from employment. Under section 96 of the
Public Service Staff Relations Act, the respondent would have
been afforded an "opportunity of being heard" by an adjudica
tor. Whereas the grievance procedure requires a review by the
employer, the Act requires a decision in an adjudication pro
ceeding to be made by an independent third party. As well,
parties may have witnesses summoned to testify on their behalf
at a hearing before an adjudicator. Subsection 96(4) obliges an
employer to take the action required by the decision of an
adjudicator. Intervention of the Board itself to enforce compli
ance with the decision of an adjudicator is provided for in
subsection 96(6) of the Act. Thus, in this case, the employer
could have been required to reinstate the respondent. In light of
these provisions, it cannot be said that an adequate alternative
remedy did not exist. The adjudication process could have
cured the procedural defect in the investigation which led to the
respondent's dismissal.
Under subsection 79(1) of the P.S.S.R.B. Regulations and
Rules of Procedure the respondent was required to file a notice
of reference to adjudication with the registrar within a pre-
scribed time. However, the respondent, through his own lack of
diligence, failed to do so. That failure to secure this alternative
remedy and protect his statutory right cannot provide a suffi
cient basis to quash the decision to dismiss the respondent.
Per Marceau J.: The decision a quo is not one to which the
rules of procedural fairness apply. The imposition by the courts
of a duty to act fairly in the carrying out of certain administra
tive functions is aimed at filling a gap. There is no gap to be
filled here. The law has provided for full protection against
unjust disciplinary measures through the Public Service Staff
Relations Act. The Court would not be justified in going
beyond the will of Parliament by subjecting the taking of those
decisions to requirements aimed at giving, in effect, a redun
dant protection.
In any event, the evidence did not support a finding of denial
of procedural fairness. The procedural rules of fairness involved
are those required to give effect to the audi alteram partem
maxim. It is obvious that the respondent was himself perfectly
aware of all the information he needed to put his own case
properly: the incidents complained of were precise as to the
place, the date and the general time of the day; particulars of
the complaints received by the Deputy Minister were given to
the union officer who was clearly acting as the respondent's
representative.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Harelkin v. University of Regina, [1979] 2 S.C.R. 561.
APPLIED:
Canadian Human Rights Commission v. Jones, [1982] 1
F.C. 738 (T.D.).
CONSIDERED:
Pearlberg v. Varty, [1972] 1 W.L.R. 534 (H.L.); Wise-
man v. Borneman, [1971] A.C. 297 (H.L.); Nicholson v.
Haldimand-Norfolk Regional Board of Commissioners
of Police, [1979] 1 S.C.R. 311.
REFERRED TO:
R. v. R. (T.) (1983), 28 Alta L.R. (2d) 383 (Q.B.); King
v. University of Saskatchewan, [1969] S.C.R. 678; Pillai
v. Singapore City Council, [1968] 1 W.L.R. 1278 (P.C.);
Calvin v. Carr, [1980] A.C. 574 (P.C.); P.P.G. Industries
Canada Ltd. v. A.G. of Canada, [1976] 2 S.C.R. 739;
Ridge v. Baldwin, [1964] A.C. 40 (H.L.).
COUNSEL:
Marlene I. Thomas for appellants.
J. Spence Stewart, Q. C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Du Vernet, Stewart, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: I have had the advantage of
reading the reasons of Mr. Justice Stone and,
while in agreement with the result, I feel it neces
sary to add comments of my own as I arrive at the
conclusion by a different reasoning.
The order under appeal [sub nom. Lewis v.
Canada Employment and Immigration Commis
sion, T-2078-83, Jerome A.C.J., January 20, 1984,
not reported] is one in the nature of certiorari
quashing a decision of the appellant Deputy Minis
ter whereby the respondent had been discharged
from employment as an immigration investigator
for misconduct in the performance of his duties.
This decision, in the view of the Motion Judge,
could not be allowed to stand because the investi
gation which had led thereto had disregarded some
of the rules of procedural fairness. Mr. Justice
Stone finds himself in agreement with the Motion
Judge's finding that the Deputy Minister had
breached the rules of procedural fairness but he
takes the position that the relief of certiorari
should nevertheless have been refused because, in
effect, the respondent had other remedies available
to him.
If I had reached Stone J.'s view that the decision
had indeed been made in an illegal manner, I
would have had no difficulty in coming to my
brother's further finding. In view of the failure of
the respondent to fully avail himself of the griev
ance procedure that was open to him under the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, a remedy, easier, more direct and more
appropriate than the one he resorted to—to which
I might have added his unsatisfactorily explained
failure to act in a timely fashion in seeking a relief
of such an extraordinary nature—I, too, would
have denied the application for certiorari. My
understanding of the reasoning of the majority
judgment of the Supreme Court in Harelkin v.
University of Regina, [1979] 2 S.C.R. 561, would
have no doubt led me to that conclusion. However,
I did not have to adopt this final line of reasoning
for the simple reason that I have not been able to
convince myself that certiorari was even, in this
case, theoretically available. Indeed, not only am I
of the opinion that the evidence does not support a
finding that the respondent has been treated in
disregard of some rules of procedural fairness, I
am of the further and more general opinion that
this was not, in any event, a decision to which rules
of procedural fairness were applicable.
I
The facts that gave rise to these proceedings are
fully set out in Mr. Justice Stone's reasons. I need
not repeat them. The substance of the respondent's
complaint of unfairness will easily be recalled.
Following complaints of blameworthy conduct on
the part of the respondent and another investigator
in the course of incidents that had occurred at one
of the Department's detention centres a few days
before, the appellant Deputy Minister set up two
Committees with the duty to investigate (each
concentrating on one of the two employees
involved and therefore identified in the record as
the Lewis Committee and the Quigley Committee)
and submit a report including recommendations
for disciplinary action, if called for. The respon
dent was advised of the investigation and the
setting-up of the two Committees by letter signed
by the acting manager of his unit, Ken Lawrence.
He was invited by the two Committees to give his
version of the events and make all representations
he wished to make and he appeared before each of
them, although he chose not to participate before
the Committee dealing more particularly with his
case. What he alleged in support of a contention
that he was not treated fairly—a contention raised
a full year later—is that before his appearance
before the Committee he had not been made clear
ly aware of the charge laid against him.
I do not think it can seriously be doubted that
the respondent knew exactly which incidents were
being investigated by the Committees. It should
indeed be recalled: (1) that the Lawrence letter,
while referring only to "incidents" was, neverthe
less, precise as to the place (detention centre), the
date (September 16), the general time of the day
(evening), where these incidents had occurred: in
view of the fact that, during the evening of Sep-
tember 16, the respondent and his partner had
been at the detention centre a few minutes only, in
the course of which, according to the respondent's
own story, his partner had had some "dealings"
with a taxi driver, he himself with the detainee
Thomas and no one else, (apart naturally from the
lady they had come to pick up), the exact identifi
cation of the incidents in question should have
raised no problem; (2) that, on September 22,
after having sought assistance of a union repre
sentative, the respondent appeared before the
Quigley Committee and the incidents on which he
was then called upon to testify were referred to as
altercations with the taxi driver and the detainee
Thomas; (3) that, on September 23, the Commit
tee concerned with the respondent's case met in
the respondent's absence but in the presence of his
partner and a union officer who was clearly acting
as the respondent's representative; and during that
meeting all information about and particulars of
the complaints received by the Deputy Minister
were given; (4) and finally, that on the same day,
September 23, after the Lewis Committee's meet
ing, the respondent had a long discussion with the
union representative and his partner, following
which he made the decision to consult a solicitor.
Bearing in mind all those facts, I do not think
one can believe that on September 24, the respon
dent could have been ignorant of the nature of the
incidents in which he had participated and about
which the Committee was investigating. In fact,
during the cross-examination he was subjected to
on the affidavit he had filed in support of his
application before the Trial Division, particulars
were required about the statement contained in
paragraph 15 thereof which reads as follows:
I became aware that the committee purportedly was dealing
with allegations that I had assaulted a certain Michael
Thomas, a detainee at the Waldorf Astoria Hotel who had been
placed in custody there by myself and Mr. Quigley some two or
three days prior.
The question asked was (page 128 of the Case
Book):
Q. What's the time-frame of paragraph 15:
"I became aware that the committee purportedly was dealing
with allegations...."
Now, you've told me this afternoon that you know that at least
as early as September 23rd?
The respondent's answer was:
A. Yes, when Mr. Quigley advised me.
We are dealing here with rules of fairness appli
cable with respect to the making of an administra
tive decision, not with criminal procedure in a
court of law. And the procedural rules of fairness
involved are those required to give effect to the
audi alteram partem maxim. So, the question is
plainly whether the respondent was sufficiently
aware of the incident under investigation and the
role he was said to have had in it to be in a position
to take full advantage of the opportunity he was
given to be heard. I simply do not see how this
question can be answered in the negative. It seems
obvious to me that the respondent was himself
perfectly aware of all that he needed to know to
put his own case properly and, in any event, his
representative had been fully informed of all
details. Moreover, at no time was any particular
denied to him, the point being that he never
requested any. The definitive emergence of the
"fairness doctrine" in the case of Nicholson v.
Haldimand-Norfolk Regional Board of Commis
sioners of Police, [1979] 1 S.C.R. 311 and its
rapid development in the case law were due to a
firm desire to better assure fair play and justice in
the administrative process by protecting individu
als against arbitrary, uninformed and hasty deci
sions. The role of the procedural rules implied by
the doctrine is to achieve such goals; it is not to
introduce uselessly formal and empty procedural
requirements. The so often repeated passage in the
speech of Lord Morris of Borth-y-Gest, in Wise-
man v. Borneman, [1971] A.C. 297 (H.L.) (pages
308-309) is again to the point:
We often speak of the rules of natural justice. But there is
nothing rigid or mechanical about them. What they com
prehend has been analysed and described in many authorities.
But any analysis must bring into relief rather their spirit and
their inspiration than any precision of definition or precision as
to application. We do not search for prescriptions which will
lay down exactly what must, in various divergent situations, be
done. The principles and procedures are to be applied which, in
any particular situation or set of circumstances, are right and
just and fair. Natural justice, it has been said, is only "fair play
in action."
I simply fail to see how it can be said that, in the
circumstances of this case, any one of the proce
dural rules attached to a duty to act fairly may
have been breached to the detriment of the fair
play and justice due to the respondent.
II
My disapproval of the order under appeal, how
ever, is not mainly based on this difference of
opinion as to whether a procedural rule imposed by
a duty to act fairly would have been breached
here. It comes first of all, as I said previously, from
the view that the requirements of procedural fair
ness had no role to play, in the circumstances of
this case. I hold that view for the following
reasons.
The decision questioned in these proceedings is
that of the Deputy Minister dismissing the
respondent for cause. The authority of the Deputy
Minister to impose disciplinary measures up to and
including discharge for cause in the course of
carrying out his mandate of personnel manage
ment is certain. This authority was first conferred
by Parliament on the Treasury Board by para
graph 7(1)(i) of the Financial Administration Act,
R.S.C. 1970, c. F-10, but it could be delegated
pursuant to subsection 7(2) of this Act and it was
effectively so delegated by section 106 of the
Public Service Terms and Conditions of Employ
ment Regulations ([SOR/67-118] later substituted
by TB 672696, September 13, 1967))
' These three provisions read, thus:
7. (1) ...
(J) establish standards of discipline in the public service and
prescribe the financial and other penalties, including suspension
and discharge, that may be applied for breaches of discipline or
misconduct, and the circumstances and manner in which and
the authority by which or whom those penalties may be applied
or may be varied or rescinded in whole or in part;
(2) The Treasury Board may authorize the deputy head of a
department or the chief executive officer of any portion of the
public service to exercise and perform, in such manner and
subject to such terms and conditions as the Treasury Board
directs, any of the powers and functions of the Treasury Board
in relation to personnel management in the public service and
(Continued on next page)
On becoming aware of a breach of discipline or
misconduct by an employee under his authority,
the Deputy Minister may, therefore, take a disci
plinary measure. There is nothing in the regula
tions to indicate how the Deputy Minister may
become aware of the facts on which a particular
measure can be taken and it is difficult to see how
such indication could have been useful. He may
happen to have witnessed personally certain mis
behaviour or he may have been apprised of it by
his supervisors, other subordinates or by third
persons. That can hardly matter in so far as the
right to act is concerned but in practice the par
ticular source of information involved may natu
rally raise a question of reliability. It is in this
context that a mechanism for administrative inves
tigations appears to have been suggested to the
deputy heads (the text of which is reproduced at
pages 65 et seq. of the Case), "designed to elicit
information and establish a factual, documented
base upon which decisions can be made". The
mechanism is presented as, and is clearly in real
ity, a pure fact-finding one, established for the
benefit of the Deputy Minister, with a view to
assisting him in the exercise of his authority. The
investigating Committee set up is given no author
ity, no power, no right to issue subpoenas for the
attendance of witnesses, and no one who agrees to
appear before it will be asked to testify under oath.
Incidentally, there was some question raised
during the hearing (and, in fact, the point had
been made by counsel for the respondent before
the investigators) as to whether the setting-up of
(Continued from previous page)
may, from time to time as it sees fit, revise or rescind and
reinstate the authority so granted.
DISCIPLINE
106. Subject to any enactment of the Treasury Board, a deputy
head may
(a) establish standards of discipline
(i) for employees;
(ii) for persons to whom the Prevailing Rate Employees
(General) Regulations, 1963, the Ships' Crews Regu
lations, 1964, or the Ships' Officers Regulations,
1964, apply and
(iii) for persons occupying teacher and principal positions
in the Department of Indian Affairs and Northern
Development,
(b) prescribe, impose and vary or rescind, in whole or in part,
the financial and other penalties, including suspension and
discharge, that may be applied for breaches of discipline or
misconduct by persons referred to in paragraph (a). (TB
718417, 22 March 1973)
the Committees here was authorized by law. I do
not see why such authority would be required. Of
course, the Deputy Minister has to inform himself
as to the facts surrounding alleged misconduct and
the setting-up of investigating Committees is only
a means for him to obtain the information he
needs. In so far as he does not purport to confer on
his investigators any power other than to look into
the facts and submit a report, he certainly does not
need special authority to do so. In any event, the
setting-up of one or several fact-finding Commit
tees can in no way affect or alter the power of a
Deputy Minister to discipline an employee of his
Department for cause. So the question to be asked
is whether the Deputy Minister is required to
observe rules of procedural fairness prior to resort
ing to a disciplinary measure. I suggest, with
respect, that he is not. Of course, I do not mean
that there cannot be circumstances where it will be
desirable and far more prudent for him, as for any
manager, to respect all the requirements usually
attached to the legal notion of natural justice
before imposing a disciplinary measure of a par
ticular gravity. I mean that he has no legal duty to
do so.
The imposition by the courts of a duty to act
fairly in the carrying out of certain administrative
functions was aimed, as I understand it, at filling a
gap. It was felt that there was no rational basis in
treating completely differently, in so far as the
protection of individuals was concerned, decisions
classified as quasi-judicial because a certain
formal requirement had been imposed in the legis
lation and decisions classified as administrative
because no such requirement had been so imposed.
Chief Justice Laskin, in Nicholson, supra, was
quite explicit (at page 325):
What rightly lies behind this emergence is the realization that
the classification of statutory functions as judicial, quasi-judi
cial or administrative is often very difficult, to say the least;
and to endow some with procedural protection while denying
others any at all would work injustice when the results of
statutory decisions raise the same serious consequences for
those adversely affected, regardless of the classification of the
function in question: see, generally, Mullan, Fairness: The New
Natural Justice (1975), 25 Univ. of Tor. L.J. 281.
There is no gap to be filled here. The law has
provided for full protection against unjust discipli
nary measures in the Public Service. If the proba
tionary constable, in the Nicholson case, supra,
had had a recourse against his dismissal as com
plete and effective as the recourse against discipli
nary measures set up in the Public Service Staff
Relations Act, it is obvious that Chief Justice
Laskin and the majority of the Court there would
not have reacted as they did. Referring to the
decision of the House of Lords in Pearlberg v.
Varty, [1972] 1 W.L.R. 534 where Viscount Dil-
home had said (at page 546):
Where the person affected can be heard at a later stage and
can then put forward all the objections he could have preferred
if he had been heard on the making of the application, it by no
means follows that he suffers an injustice in not being heard on
that application. Ex parte applications are frequently made in
the courts. I have never heard it suggested that that is contrary
to natural justice on the ground that at that stage the other
party is not heard.
the learned Chief Justice stated quite simply [at
page 326]:
Pearlberg v. Varty has no affinity with the present case ....
Unlike the situation in the present case, the decision in issue
would not be a final determination of his rights.
The centre point in the Nicholson case, as it had
been previously in the landmark case of Ridge v.
Baldwin, [1964] A.C. 40 (H.L.), was the peremp
tory and final character of the impugned decision.
This case cannot be seen, therefore, as falling
under the governing influence of either one of
them.
In my view, the law having set up an adequate
system of control over the disciplinary decisions of
the Deputy Minister, the Court would not be
justified to go beyond the will of Parliament and
subject the taking of those decisions to require
ments aimed at giving, in effect, a redundant
protection. It should be recalled that the expansion
of the rules of fairness is not always advantageous
and carries with it certain dangers as is pointed out
in de Smith's Judicial Review of Administrative
Action (4th edition) at page 47:
... to determine the procedural duties of public authorities by
such an open-textured standard as the duty to act fairly can
create grave uncertainties in administration and may lead to
the inappropriate imposition of an overly judicialised procedure
upon bodies whose ability to discharge their statutory respon
sibilities may thereby be impaired.
and again at page 240:
... there is a point at which the benefits of extensive applica
tions of the notion of fairness may be outweighed by the costs
of uncertainty in administration and in the courts.
A statement made by Lord Reid in the course of
his speech in Wiseman v. Borneman, supra, (at
page 308) comes to mind here:
Natural justice requires that the procedure before any tribunal
which is acting judicially shall be fair in all the circum
stances .... For a long time the courts have, without objection
from Parliament, supplemented procedure laid down in legisla
tion where they have found that to be necessary for this
purpose. But before this unusual kind of power is exercised it
must be clear that the statutory procedure is insufficient to
achieve justice and that to require additional steps would not
frustrate the apparent purpose of the legislation.
The procedural requirements created by the
doctrine of fairness should not be imported, in my
view, into the field of personnel management and
disciplinary action in the Public Service where
efficiency requires that things be done simply and
quickly and where Parliament has already set up a
complete and totally adequate mechanism to con
trol the decisions of the authority. So, even if I had
not reached the conclusion, in this case, that all
that could reasonably be done to give effect to the
audi alteram partem maxim was actually done, I
would have said that no legal duty to comply with
any procedural measures imposed by a special
duty to act fairly was present.
I would therefore, like my brother Stone J.,
grant the appeal and quash the judgment of the
Trial Division, with costs in both Courts.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: The appellants seek to quash an order
in the nature of certiorari issued by the Associate
Chief Justice on January 20, 1984 pursuant to
section 18 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], whereby a decision of the
appellant Deputy Minister, dated October 15,
1982, was quashed. By that decision the respon
dent was discharged from employment effective
October 20, 1982. The decision of the Deputy
Minister followed an investigation of a complaint
of misconduct on the part of the respondent in the
course of his employment. No question arises on
this appeal as to the authority to carry out the
investigation which, apparently, is founded upon
the provisions of paragraph 7(1)(i) of the Finan
cial Administration Act, R.S.C. 1970, c. F-10.
FACTUAL BACKGROUND
By his letter dated October 15, 1982, the
Deputy Minister, acting on the recommendation of
an investigating Committee, discharged the
respondent from employment as an immigration
investigator with the Commission. The respondent
had held that position from August of 1974 and
had been employed with the Commission com
mencing in March of 1973. While his position is
referred to as "immigration investigator" or
"immigration officer", it appears that the latter
description is technically correct. He testified that
his duties included "apprehension, arrest and
detention of persons in violation of the Immigra
tion Act and Regulations". Those are powers con
ferred by virtue of section 111 of the Immigration
Act, 1976 [S.C. 1976-77, c. 52] on an "immigra-
tion officer" either appointed or designated under
section 110. In his letter to the respondent, the
Deputy Minister wrote:
This is further to the recommendation of your Executive
Director to discharge you from the Commission/Department
following an internal administrative investigation into your
activities on the evening of September 16, 1982.
I have carefully reviewed the facts and circumstances sur
rounding this recommendation and I am satisfied that you
physically assaulted an Immigration Detainee, Michael
Thomas, while he was being held in the Waldorf-Astoria
Detention Centre.
In view of the nature and seriousness of your misconduct, I
have decided, pursuant to the authority granted me under
section 106 of the Public Service Terms and Conditions of
Employment Regulations, to discharge you effective October
20, 1982 at the close of business.
In accordance with section 90 of the Public Service Staff
Relations Act, you may present a grievance against my decision
within 25 days following receipt of this letter.
On September 20, 1982, two Investigating Com
mittees were struck to investigate the conduct of
the respondent and of his partner one Quigley,
another immigration investigator employed by the
Commission, in connection with certain incidents
alleged to have occurred on the evening of Septem-
ber 16, 1982, at or near the Waldorf-Astoria Hotel
in Metropolitan Toronto. The allegation against
Quigley was that he has assaulted a taxi driver. By
letter dated September 20, 1982, the Assistant
Manager, Toronto Enforcement, Canada Immi
gration Centre, wrote to the respondent as follows:
An administrative investigation is being conducted with respect
to certain incidents which allegedly took place during the
evening of Thursday, 16 September 1982 at the
Waldorf-Astoria Immigration Detention Centre. The two
Investigative Committees formed to investigate these alleged
incidents plan to interview you in the near future. You have the
right to representation. A copy of this letter has therefore been
provided to your union representative.
The Committee appointed to investigate the taxi
driver's complaint interviewed the respondent on
September 22. A transcript of the interview, which
was tape-recorded, is before us. While the inter
view was concerned with the complaint of the taxi
driver, the alleged assault on Thomas was gone
into with the respondent to some extent. He was
not informed, however, that his own conduct had
been brought into question in this connection and,
indeed, it was made clear to him that the purpose
of the interview was to determine the facts sur
rounding the complaint of the taxi driver.
The Committee struck to investigate the
Thomas complaint consisted of two officials of the
Canada Immigration Centres at Toronto, namely,
one Best of the Toronto East Centre and one
Mitchell of the Toronto West Centre. Attempts by
this Committee to interview Quigley and the
respondent on September 23, 1982 were unsuc
cessful because of the latter's unavailability until
September 24. Quigley attended the Committee on
September 23 accompanied by one Wasilewski, a
representative of his union. A tape-recorded tran
script of the discussion is before us. The union
representative took objection to the interview pro
ceeding on that day because she had only recently
received notice of it and felt unprepared. She
stated as her understanding that the investigation
would probably lead to a report being made to the
Manager of Toronto Enforcement and that he, at
that time, would "have to consider whether any
kind of disciplinary action is warranted or if it
turns out very negatively for Mr. Lewis and Mr.
Quigley". She contended that neither Quigley nor
the respondent had been informed of any specific
allegations made against them up to that point in
time. In response to this criticism, Committee
member Best stated:
The outcome I can't comment on because I have no opinion. All
we're doing, is literally that, the investigation. What the out
come will be or whether there will be any outcome is something
I have no concern with or interest in. I will submit the report
and that's it. At that time before any disciplinary action is
taken, if that's the decision, then of course, a disciplinary
hearing will be held at which time they would have the right to
union representation. This has nothing to do with disciplinary
action. This is really to find out if something happened and if
something did happen, what happened, no more.
After some further discussion, the Committee
decided to defer the interview until the following
day, commencing at 9:00 a.m. It had already
arranged to interview the respondent commencing
one hour later. Before adjourning, the Committee
members described to the union representative and
to Quigley the allegations under investigation as
follows:
Mitchell: ... Okay, basically the allegations are such that
a detainee at the Waldorf-Astoria hotel, a Mr.
Michael Thomas was, we'll put it as, physically
contacted by an officer, the commission, in spe
cific Officer Dale Lewis.
Wasilewski: And physically contacted there, are you alleging
that some form of force was used upon the
person?
Best: Mr. Thomas claims that he was struck by Officer
Lewis.
Wasilewski: Is he claiming that Mr. Quigley struck him as
well?
Mitchell: No, he was not.
Wasilewski: Is he claiming that Mr. Quigley was present at
the time that this happened?
Mitchell: Yes.
Wasilewski: Were there any other people present other than
the two officers and the detainee?
Mitchell: Well
Best: There may have been other people who were in
and around at the time, but you asked for the
allegation, not a summary of our evidence.
Wasilewski: Okay, what time did this take place, do you
know?
Mitchell: At approximately at 22:15 on the evening of the
16th of September 1982.
Wasilewski: Twenty to what?
Mitchell: 22:15, would be 10:15
Wasilewski: On the 15th?
Mitchell: On the 16th.
It is clear from the record that the respondent
was not at any time informed in writing by the
Committee or by anyone acting on its behalf that
its investigation was directed toward an alleged
assault by him upon Thomas and that it was one of
the "incidents" referred to in the letter of Septem-
ber 20, 1982. On the other hand, the appellants
rely upon the revelations made by the Committee
to Quigley and Wasilewski on September 23, cou
pled with statements made by the respondent in an
affidavit sworn September 9, 1983 in support of
the application for the order under attack and
upon evidence given upon cross-examination on
that affidavit on October 5, 1983. At that 'cross-
examination, counsel for the appellants produced a
transcript of the September 23 interview and it
was marked as Exhibit A for identification. With
the aid of the transcript, counsel cross-examined
the respondent on his understanding of the purpose
of the Best/Mitchell investigation. His understand
ing, he testified, was gained from Quigley follow
ing his interview of September 23 and was to the
effect that "they had asked him about an assault".
The respondent's attention was drawn to pages 9
and 10 of the transcript upon which he testified as
follows:
Q ... But, if I can direct your attention to five indentations
up from the bottom of the page:
"Mitchell: Basically the allegations are such that a
detainee at the Waldorf Astoria, Mr. Michael Thomas
was, we'll put it as, physically contacted by an officer, The
Commission, in specific, Officer Dale Lewis."
And then two down:
"Best: Mr. Thomas claims he was struck by Officer Lewis,
not by Quigley, but Quigley was present at the time."
Did Quigley give you information to that effect sometime on
September 23rd, 1982?
A He stated to the effect that they had asked about an
assault. Those were the words he used.
Q Was the name Michael Thomas mentioned?
A Yes—well, I would think so.
Q All right. So, is it fair for me to suggest to you that you
knew at that time what—what allegations had been—
A I had been informed by Mr. Quigley that that's what they
had asked him, yes.
Q All right. Did you speak to Ms. Wasilewski between—
well, in the intervening time between the interview that's
reflected in Exhibit A and the September 24th interview or
meeting?
A Yes, I did.
Q Did she give you information that is in effect what's set
out at page 9 of Exhibit A?
A She didn't tell me something specifically of that nature.
She said that the matter that they were dealing with, in her
opinion, was of a serious nature, and she said that she was not
qualified to pursue the matter further; that she had asked for
help from someone higher in the Union, and they didn't seem to
know what to do; and that she suggested that I contact Coun
sel, but she didn't want me to contact Counsel if there was no
need to contact Counsel. She didn't know what to tell me. So,
on that basis, I contacted Counsel.
I will return to consider this evidence in due
course.
It is apparent from the Committee's report that
it was in the hands of the Manager, Toronto
Enforcement, Canada Immigration Centre, by
October 8, 1982, when he addressed a letter to the
respondent informing him to that effect and also:
As a result of this investigation a recommendation for your
discharge has been forwarded today to Mr. G. Lussier, Chair-
man/Deputy Minister, Canada Employment and Immigration
Commission.
While the Deputy Minister states in this letter that
he was acting on the recommendation of "your
Executive Director", it is apparent that the recom
mendation to discharge the respondent was based
upon the Committee's report which in fact had
recommended that "disciplinary action be taken
against Dale Lewis and John Quigley concerning
their participation in an assault against Michael
Thomas". In that report, the Committee concluded
from the facts before it that Thomas had been
"hit, at least once, by Immigration Officer Dale
Lewis".
The respondent attacked the decision of the
Deputy Minister before the Associate Chief Jus-
tice on the ground that he had not been informed
of the case made against him in advance of his
scheduled interview. He claims that the letter of
September 20, 1982, did not contain any specific
allegation of misconduct but only that "certain
incidents" were being investigated and that the
committees formed to investigate the alleged inci
dents "plan to interview you in the near future".
Following his discharge, the respondent invoked
the grievance procedure provided for in the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35,
subsection 90(1). It is clear on the record that he
pursued his grievance to the final level without
success. That point was arrived at in February
1983. In the meantime Quigley, too, had been
disciplined both in respect of the alleged assault on
the taxi driver as for his participation in the
alleged assault on Thomas, the detainee. We are
told that he, too, lodged a grievance and that he
pursued it beyond the final level to adjudication.
Before the adjudication process had run its course,
Quigley launched an application under section 18
of the Federal Court Act praying for a writ of
certiorari quashing the decision of the Deputy
Minister discharging him from his employment
with the Commission. That application was heard
in the Trial Division on February 14, 1983, by Mr.
Justice Mahoney who granted the relief sought on
February 22, 1983 [sub nom. Quigley v. Canada
Employment and Immigration Commission,
T-9197-82, not reported]. No appeal to this Court
was taken from that decision.
On February 28, 1983, after receipt of the final
level grievance reply, the respondent sent a letter
to his union with a notice of reference to adjudica
tion and disclosing, inter alia, the name, address
and telephone number of his solicitor who he had
"retained and instructed ... to pursue this matter
to the fullest". He did not pursue the matter to
adjudication. Instead his solicitor sought his rein
statement at the Regional Office level but was
unsuccessful. This was followed by a letter dated
June 16, 1983, from his solicitor to the Deputy
Minister seeking the respondent's reinstatement on
the basis of the decision of the Trial Division in the
Quigley case. He wrote in part:
Since all the same considerations would seem to apply to Mr.
Lewis as to Mr. Quigley, I approached your Regional Office on
the question of whether or not they would consider reinstating
Mr. Lewis at this time rather than wait for the results of
arbitration. I spoke to a Ms. Lynn Reesor who dealt with the
matter on behalf of the Director of Personnel, Frank Ashmol. I
was advised that no consideration would be given Mr. Lewis as
a result of the decision of the Federal Court.
Since Mr. Quigley would seem to be in no better position than
Mr. Lewis with regard to this matter, it may well be unneces
sary to go to arbitration for Mr. Lewis. Indeed, if I am correct
that the Federal Court decision on Mr. Quigley's case applies
to Mr. Lewis' circumstances, then the arbitration would be
dealing with a matter already decided by the courts.
I am writing you with the thought that you might want to give
this matter further consideration at this time rather than
involving Mr. Lewis and the Department of Employment and
Immigration in further work and costs.
This attempt at reinstatement was also unsuccess
ful as appears from a letter dated July 7, 1983,
from the Deputy Minister who wrote in part:
Mr. Lewis was accused of having physically assaulted an
Immigration detainee. He was made aware of the allegations
against him and of the consequences by management through
his Union representative, following which he obtained legal
counsel. He then declined to be interviewed by the Internal
Investigation Committee.
Upon review of the matter I am satisfied that Mr. Lewis'
case is therefore quite different from that of Mr. Quigley and
any intervention on my part is unwarranted.
The solicitor reported this result to the respon
dent by letter, but due to a variety of circum
stances the letter did not reach him until mid-
August 1983. His present solicitors were thereafter
retained and the originating notice of motion seek
ing a writ of certiorari was filed and served in
early September. It was heard by the Associate
Chief Justice on October 31. While a number of
grounds were advanced by the parties either for
quashing or for sustaining the Deputy Minister's
decision of October 15, 1982, this appeal is con
cerned only with the order made by the learned
Associate Chief Justice and with his reasons there-
for. The respondent appeared satisfied with that
order for the reasons given as he did not launch a
cross-appeal. Accordingly, it is necessary here to
deal only with the alleged "errors" advanced by
the appellants against that order. They may be
summarized as follows:
(a) the respondent was afforded administrative
fairness;
(b) the order was based upon a misapprehension
of facts;
(c) it was wrong to make that order when an
alternative remedy was available;
(d) a judicial attitude of reluctance to interfere
in an employment relationship where a griev
ance and an adjudication process is provided for
determining disputes was disregarded;
(e) the order ought not to have been made
because of laches on the part of the respondent.
These last three submissions, we are informed,
were made before the Associate Chief Justice even
though they are not dealt with expressly in his
reasons. I shall deal with the above issues in turn.
DUTY OF FAIRNESS
The learned Associate Chief Justice, in referring
in his reasons to the decision of Mr. Justice
Mahoney in the Quigley case, observed [at page
2]:
If I may paraphrase, the basis of that decision is that while
Quigley throughout the proceedings had been made aware that
his own conduct might be subject to disciplinary measures, he
had not been advised that he was equally in jeopardy for his
involvement in the allegations against Lewis. While there are
certain factual differences in the two situations, it would appear
that a similar result must ensue here.
Assault by an employee of Immigration Canada upon any
person held in Immigration detention is an extremely serious
matter and if verified, invites dismissal. It is now well estab
lished that in the conduct of such investigative proceedings, the
duty to treat the accused person fairly includes his right to
know what case he must meet, to make full answer and
defence, and to be aware that an adverse decision might result
in serious disciplinary measures.
In the case before us no question arises that the
respondent was entitled to be treated fairly.
Instead, the appellants contend that fairness was
accorded and that there can be no cause for com
plaint. On the other hand, the respondent claims
that fairness was denied because he was not
informed prior to the scheduled interview that it
was his own conduct that was the subject of the
investigation and in what respect his conduct was
under review. The leading case in this country on
the duty of fairness is the decision of a majority of
the Supreme Court of Canada in Nicholson v.
Haldimand-Norfolk Regional Board of Commis
sioners of Police, [1979] 1 S.C.R. 311. That case
involved the summary dismissal of a probationary
police constable. It was clear that as a probation
ary employee Nicholson was not entitled to have
his case heard prior to final disposition. The princi
ple of that decision must, of course, be viewed in
the circumstances it presented, including the fact
that as a police constable Nicholson was the holder
of a public office and was not merely the "servant"
of his employer. The duty to treat fairly was
summarized by Laskin C.J. in the following words
(at page 328):
In my opinion, the appellant should have been told why his
services were no longer required and given an opportunity,
whether orally or in writing as the Board might determine, to
respond. The Board itself, I would think, would wish to be
certain that it had not made a mistake in some fact or
circumstance which it deemed relevant to its determination.
Once it had the appellant's response, it would be for the Board
to decide on what action to take, without its decision being
reviewable elsewhere, always premising good faith. Such a
course provides fairness to the appellant, and it is fair as well to
the Board's right, as a public authority to decide, once it had
the appellant's response, whether a person in his position should
be allowed to continue in office to the point where his right to
procedural protection was enlarged. Status in office deserves
this minimal protection, however brief the period for which the
office is held.
While the respondent was not entitled to the
panoply of protections afforded by the principles of
natural justice including those of a full hearing
into the complaint, he was entitled to be treated
fairly. Here the function of investigating the com
plaint was in different hands than the function of
deciding what form of discipline should be meted
out. This split in the process required particular
care on the part of the Investigating Committee
lest it reach an erroneous conclusion on which a
disciplinary decision would be based. The respon
dent had held office for several years and there is
no suggestion that his performance over those
years was in any way unsatisfactory. Admittedly,
the allegation of assault upon a detainee was a
serious one but, as I view it, that was another
reason for the exercise of fairness in the investiga-
tory process. At the same time, obviously, the
respondent could not frustrate that process by
refusing to co-operate if, as the appellants claim,
he was informed of the case made against him.
Fairness required that he be so informed and that
he have a fair opportunity of answering that case.
Provided that was done then the respondent could
have no cause to complain. He could only blame
himself if, by neglecting to tell the Committee his
side of the story, he left it to conclude its investiga
tion as best it could and to make a recommenda
tion on the basis of other evidence.
In my judgment, this aspect of the appeal
reduces itself to a question whether, on the record
before us, the respondent was made aware of the
case made against him prior to the interview
scheduled for September 24, 1982. The appellants
say that the respondent was so informed. They
claim that information disclosed to Quigley and to
Wasilewski by the Investigating Committee on
September 23 was, in turn, communicated to the
respondent by those two individuals. On Septem-
ber 24, 1982, the respondent, accompanied by his
counsel and the union representative, attended the
Committee with Quigley and his own counsel. On
advice of counsel, both Quigley and the respondent
refused to be interviewed after taking technical
objections to the powers of the Committee under
paragraph 7(1)(i) of the Financial Administration
Act. The respondent's claim that he was not, even
at that point, informed by the Committee of the
case against him is not contradicted by the
appellants.
If I could be satisfied that allegations of miscon
duct were clearly brought home to the respondent
through Quigley and Wasilewski, even though not
directly by the Committee itself, I would have no
hesitation in concluding that the respondent was
treated fairly. But I am unable to find, in the
record before us, clear evidence establishing
unequivocally that the respondent learned of the
case made against him in conversations with Quig-
ley and Wasilewski. Neither of those individuals
were asked to convey the information to the
respondent. I do not think its disclosure to Wasi-
lewski can be treated as a disclosure to him.
While, apparently, she was in charge of both cases
under investigation, her presence at the September
23 interview was on behalf of Quigley alone. It is
equally clear, on the record, that she merely
informed the respondent that the matter was of a
"serious nature". There is no evidence that she laid
out to him the detailed allegations related to her
by Best and Mitchell. The mention of "an assault"
and of the name of "Thomas" to the respondent by
Quigley may suggest that these allegations were
somehow conveyed but I think the evidence falls
somewhat short of establishing that that in fact
occurred. Nor would I infer from the retention by
the respondent of a solicitor, knowledge on the
respondent's part that it was his conduct that was
under investigation. He was, of course, entitled to
consult a solicitor if he cared to and it matters not
that such solicitor might or might not be heard by
the Committee or even be present during the inter
view. Moreover, in the face of the respondent's
evidence as to the advice given to him by Wasilew-
ski that "I contact Counsel, but she didn't want me
to contact Counsel if there was no need to contact
Counsel" and that "She didn't know what to tell
me", it is perhaps not surprising that he decided to
retain a solicitor even though at the eleventh hour.
I have concluded that as the respondent was not
made aware of the case made against him prior to
his scheduled interview of September 24 he was
not treated fairly. Moreover, the Investigating
Committee chose not to accept an invitation by the
respondent's counsel made on September 24 to
assist it on an informal basis if it required informa
tion within his knowledge. Instead, the investiga
tion was concluded and the report with its recom
mendation for disciplinary action was made by the
Committee without pursuing that line of possible
inquiry.
MISAPPREHENSION OF THE FACTS
It is next contended that the learned Associate
Chief Justice based his decision on a fact that had
not been established in the record before him and
that the alleged error is reflected in the following
observation made in his reasons for the order
below [at page 3]:
In addition, during the course of the Quigley investigation, the
Chairman specifically, and I might say quite erroneously,
outlined the procedure to be followed by indicating that any
disciplinary measures consequent upon his findings would be
the subject of a separate disciplinary hearing. There was no
authority for such a statement and indeed it was not done in
respect to Quigley. Once again, it is impossible to determine to
what extent that misdirection or misdescription brought forth
admissions from the applicant Lewis which he would not
otherwise have made. In the circumstances, I am not satisfied
that the applicant Lewis received the benefit of those proce
dural safeguards which are essential to the duty to treat him
fairly during the course of these proceedings.
The reference by the Associate Chief Justice to the
erroneous indication "that any disciplinary meas
ures consequent upon the findings would be the
subject of a separate disciplinary hearing" is to a
statement made by Committee member Best on
September 23, 1982, quoted above, that "before
any disciplinary action is taken, if that's the deci
sion, then of course, a disciplinary hearing will be
held". I have no doubt that it is to this portion of
the record that the Judge below was directing his
mind. I accept as entirely reasonable the respon
dent's argument that the reference in the reasons
to the "Quigley investigation" was intended to be
to the Quigley interview of September 23 made in
the course of the "Lewis investigation". That being
so, I do not think that the Associate Chief Justice
misdirected himself. My appreciation of the guide
lines governing the investigation is that no "disci-
plinary hearing" was ever contemplated following
conclusion of the investigation and the submission
of the report thereon. All that remained to be done
was for the Deputy Minister to decide whether
disciplinary punishment was called for and, if so,
what that punishment should be.
The appellants take this objection one step fur
ther. They contend that the entire decision of the
Judge below was founded upon this alleged error. I
cannot agree. In the first place, as I have already
stated, I do not think the error can be fairly
described as anything more than typographical.
Secondly, it is evident that in reaching his decision
the learned Judge was principally concerned with
the failure on the part of the appellants to make
the respondent aware of the case made against
him. This is evident from his discussion of the
Trial Division decision in the Quigley case and to
the observations which follow that discussion
where emphasis is laid on "the duty to treat the
accused person fairly".
ALTERNATIVE REMEDY
I turn next to consider the appellants' argument
that the Judge below erred in granting certiorari
when there was an adequate alternative remedy
available to the respondent in the form of adjudi
cation pursuant to paragraph 91(1)(b) of the
Public Service Staff Relations Act:
91. (1) Where an employee has presented a grievance up to
and including the final level in the grievance process with
respect to
(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.
In point of fact, when his section 18 application
was launched in September 1983, the time for
filing the Form 32 Notice of Reference to Adjudi
cation prescribed in subsection 79(1) of the
P.S.S.R.B. Regulations and Rules of Procedure
[C.R.C., c. 1353] made pursuant to subsection
99(3) of the Act, had elapsed several months
earlier. In essence, therefore, the appellants argue
that this passing up by the respondent of the
opportunity to secure an adequate remedy ought
not now to entitle him to relief in the form of
certiorari as it might have done had he no place to
go for relief other than to the courts.
In his letter of October 15, 1982, to the respon
dent, the Deputy Minister informed him that in
accordance with section 90 of the Act he could
"present a grievance against my decision within 25
days following receipt of this letter". The respon
dent did present a grievance and took it through
the various stages of the grievance procedure up to
the final level. On February 26, 1983, he received
the following reply from his former employer at
the final level:
Management has carefully reviewed and discussed your griev
ance with your CEIU representative.
Local Management's recommendation of October 8, 1982 to
discharge you was appropriate under the circumstances and
was subsequently acted upon.
Therefore, your grievance is denied.
The Act does not specify a time limit within
which Form 32 initiating the adjudication process
is required to be filed with the Public Service Staff
Relations Board. Instead, the power of prescribing
a limit by regulation is conferred on the Board
itself by subsection 99(3) of the Act. Under sub
section 79(1) of the Regulations and Rules of
Procedure adopted by the Board the respondent
was required to file Form 32 with the registrar. It
reads:
79. (1) Where a grievance may be referred to adjudication
under section 91 of the Act, an employee may, not later than
the 30th day after
(a) the day on which he received a reply at the final level of
the grievance process, or
(b) the last day on which the employer was required to reply
to the grievance at the final level of the grievance process
under section 77,
refer the grievance to adjudication by filing with the registrar
in duplicate a notice in Form 32 together with a copy of the
grievance that he submitted to his immediate supervisor or
local officer-in-charge at the first level of the grievance process
pursuant to subsection 74(1).
The evidence before us shows that while the
respondent completed From 32 within a few days
of receiving the employer's final level reply on
February 26, 1983, and also that he forwarded it
to his union shortly thereafter, it was not filed with,
the registrar within the prescribed time. Nor is
there evidence the time for filing the notice was
extended by the Board pursuant to its authority
under subsection 89(1) of the Regulations and
Rules of Procedure.
On the basis of the evidence before us, it would
appear that Form 32 was not processed by the
union because of information received from the
respondent that he had retained a lawyer to "pur-
sue the matter to the fullest". Additionally, the
respondent appeared content to seek reinstatement
outside the adjudication process on the basis that
the decision of the Trial Division in the Quigley
case applied with equal force to his grievance. In
granting certiorari relief Mr. Justice Mahoney
stated in his reasons for judgment of February 22,
1983, in that case (at page 5):
It was argued on behalf of the respondent that the Court
ought not to exercise its discretion to grant certiorari in view of
the applicant's right to avail himself of the prescribed grievance
procedure to challenge the decision. He has, in fact, done so.
The courts have been traditionally reluctant to intrude into
labour-management disputes whose resolutions are provided for
by special procedures even where their jurisdiction is not ousted
by the special provision, whether contractual or legislative. A
reason for the reluctance is said to be the expertise of the
special tribunals. Here the issue is procedural fairness, an area
in which, with respect, the courts have the expertise, if such
exists. A decision that the applicant has not been accorded the
necessary measure of fairness in the process leading to his
discharge is not, of course, a decision that the discharge was not
fully justified on the merits.
Sometime after that decision was rendered, Quig-
ley's employer reinstated him to his former posi
tion. As a result Quigley withdrew his grievance
which had already reached the adjudication stage
but had not been fully argued nor disposed of at
that stage.
I agree with the appellants' submission that in a
case of this kind involving the existence of a
possible alternative remedy, the respondent was
not entitled to certiorari relief as of right. Put
another way, the decision to grant such relief was
one of discretion (P.P.G. Industries Canada Ltd. v.
A.G. of Canada, [1976] 2 S.C.R. 739, at page
749). It is clear on the other hand that the alterna
tive remedy must be adequate in the eyes of the
law, else the discretion may be exercised in favour
of the applicant. In deciding whether an adequate
alternative remedy exists (and hence that the
remedy of certiorari should be denied), the courts
are required to consider a number of relevant
factors. This is made clear by a decision of a
majority of the Supreme Court of Canada in
Harelkin v. University of Regina, [1979] 2 S.C.R.
561. That case involved the denial of natural jus
tice by an inferior committee created under para
graph 78(1)(c) of the governing statute and the
availability of a new hearing on appeal before a
superior committee of the University senate creat
ed under paragraph 33(1)(e). Instead of pursuing
his grievance to a hearing before the superior
committee, the appellant sought and obtained
relief by way of mandamus and certiorari in the
Court of Queen's Bench for Saskatchewan. That
relief was short lived, however, when the decision
allowing it was reversed by the Court of Appeal
for Saskatchewan. In upholding the decision of the
Court of Appeal, Beetz J. spelled out some of the
factors which need to be weighed by a court in
deciding in a case of this kind whether an adequate
and convenient alternative remedy is available. He
said (at page 588):
In order to evaluate whether appellant's right of appeal to
the senate committee constituted an adequate alternative
remedy and even a better remedy than a recourse to the courts
by way of prerogative writs, several factors should have been
taken into consideration among which the procedure on the
appeal, the composition of the senate committee, its powers and
the manner in which they were probably to be exercised by a
body which was not a professional court of appeal and was not
bound to act exactly as one nor likely to do so. Other relevant
factors include the burden of a previous finding, expeditious-
ness and costs.
In addition to these factors, the learned Judge
placed particular emphasis on the general intent of
the legislature as expressed in the governing stat
ute favouring internal settlement of disputes with
out resort to the courts. He observed (at pages
595-596):
Sections 78(1)(c) and 33(1)(e) are in my view inspired by
the general intent of the Legislature that intestine grievances
preferably be resolved internally by the means provided in the
Act, the university thus being given the chance to correct its
own errors, consonantly with the traditional autonomy of uni
versities as well as with expeditiousness and low cost for the
public and the members of the university. While of course not
amounting to privative clauses, provisions like ss. 55, 66,
33(1)(e) and 78(1)(c) are a clear signal to the courts that they
should use restraint and be slow to intervene in university
affairs by means of discretionary writs whenever it is still
possible for the university to correct its errors with its own
institutional means. In using restraint, the courts do not refuse
to enforce statutory duties imposed upon the governing bodies
of the university. They simply exercise their discretion in such a
way as to implement the general intent of the Legislature. I
believe this intent to be a most important element to take into
consideration in resolving the case, and indeed to be a conclu
sive one, when taken in conjunction with the others.
The majority went on to decide that the remedy
afforded by virtue of the statute in the form of an
opportunity for a hearing and evidence de novo by
a superior committee was an adequate one in the
circumstances. In so concluding, Beetz J. stated
the principle governing the exercise of discretion in
a case of this kind as follows (at page 593):
The courts should not use their discretion to promote delay
and expenditure unless there is no other way to protect a right.
I believe the correct view was expressed by O'Halloran J. in
The King ex rel. Lee v. Workmen's Compensation Board
([1942] 2 D.L.R. 665), at pp. 677-678 dealing with mandamus
but equally applicable to certiorari:
Once it appears a public body has neglected or refused to
perform a statutory duty to a person entitled to call for its
exercise, then mandamus issues ex debito justitiae, if there is
no other convenient remedy ... If however, there is a conven
ient alternative remedy, the granting of mandamus is discre
tionary, but to be governed by considerations which tend to the
speedy and inexpensive as well as efficacious administration of
justice ... (Underlining is mine.)
In order to determine whether an adequate
remedy existed in this case, it is necessary to
examine certain provisions of the Act and Regula
tions dealing with the reference to adjudication of
a grievance arising out of dismissal from employ
ment. Of first importance in this regard are the
provisions of section 96 of the Act which reads in
part as follows:
96. (1) Where a grievance is referred to adjudication, the
adjudicator shall give both parties to the grievance an opportu
nity of being heard.
(2) After considering the grievance, the adjudicator shall
render a decision thereon and
(a) send a copy thereof to each party and his or its repre
sentative, and to the bargaining agent, if any, for the bar
gaining unit to which the employee whose grievance it is
belongs; and
(b) deposit a copy of the decision with the Secretary of the
Board.
(3) In the case of a board of adjudication, a decision of the
majority of the members on a grievance is a decision of the
board thereon, and the decision shall be signed by the chairman
of the board.
(4) Where a decision on any grievance referred to adjudica
tion requires any action by or on the part of the employer, the
employer shall take such action.
Here, it is noteworthy that by subsection 96(1) the
respondent could have been afforded an "oppor-
tunity of being heard" by an adjudicator. By con
trast, he was only entitled to be treated fairly by
his employer in arriving at the decision to dismiss
him. Whereas the different levels of decision in the
grievance procedure required only a review by the
employer, the Act requires a decision in an adjudi
cation proceeding to be made by an independent
third party. As well, under that process, parties
may have witnesses summoned to testify at a
hearing before an adjudicator on their behalf.
Significantly, subsection 96(4) of the Act obliges
an employer to take the action required by the
decision of an adjudicator. Thus, it seems to me,
the employer in this case could have been required
by an adjudicator to reinstate the respondent if he
considered that to be appropriate in the circum
stances. Intervention of the Board itself to enforce
compliance with a decision of an adjudicator is
provided for in subsection 96(6) of the Act.
In light of these provisions, it is difficult for me
to conclude that an adequate alternative remedy
was not available to the respondent under subsec
tion 91(1) of the Act whereby the procedural
unfairness complained of could have been set right.
In essence his complaint is that, in the steps lead
ing to the decision to dismiss him, he was denied
fair treatment at the hands of his employer. The
pursuit of a full hearing made available to him
under the adjudication process including the possi
bility of being absolved of misconduct and of being
restored to his former position could, in my judg
ment, have cured the procedural defect in the
investigation which led to that decision. If denial
of natural justice by the inferior Committee could
be cured by a new hearing before a superior
Committee as was held in the Harelkin case, in my
view the denial of procedural fairness by the
employer in this case could have been cured by a
full hearing before an adjudicator. In that case,
after quoting with approval from a judgment of
Spence J. in King v. University of Saskatchewan,
[1969] S.C.R. 678, at page 689, Beetz J. went on
to say (at page 582):
But the senate committee in King did in practice act in a final
appellate capacity and Spence J. expressed a general principle
in holding that the denial of natural justice in the earlier
proceedings could be cured in appeal, and implicitly but neces
sarily, that the decision appealed from was not a complete
nullity since it could be appealed. (See also Re Clark and
Ontario Securities Commission, where Wells J.A. of the
Ontario Court of Appeal held that the failure to observe the
rules of natural justice in initial proceedings could be cured in
appeal to an administrative commission; and see Re Polten and
Governing Council of the University of Toronto, where Weath-
erston J. in the Ontario Divisional Court said at p. 216, that "if
the final appeal is in effect a new trial, and not an appeal in the
ordinary sense, I do not see why any want of natural justice in
the intermediate appeals is not cured").
To the same effect are the decisions of the Privy
Council in Pillai v. Singapore City Council,
[1968] 1 W.L.R. 1278, and in Calvin v. Carr,
[ 1980] A.C. 574, in which a number of English
and Commonwealth cases on this subject are
discussed.
The final aspect of this argument concerns the
undoubted fact that when his application under
section 18 was launched in September 1983, (after
retaining new counsel) the time for referring his
grievance to adjudication had long since passed.
Did this fact furnish a basis for certiorari relief?
In my judgment it did not. The opportunity to
secure the alternative remedy had been open to the
respondent but was passed up when he failed to
file Form 32 with the registrar of the Board within
the time prescribed. In this he may well have been
guided by advice of his former solicitor who, it
appears, counselled the seeking of redress infor
mally. That is no excuse, in my view, for failing to
file the required notice within the time prescribed.
Had he done so, it would have been easy enough
for him to pursue his alternative remedy in accord
ance with subsection 91(1) of the Act in the event,
as it transpired, the informal approach failed. I am
quite unable to see how this failure on his own part
to protect his statutory right to adjudication
should now provide a sufficient basis for a Court
order quashing the decision to dismiss him not
withstanding that a serious allegation of miscon
duct occurring in his capacity as an immigration
officer remains outstanding and unanswered.
While it is equally true that he had been dis
missed from his position as an immigration officer
without being accorded fair treatment, a statutory
remedy capable of curing that defect was ready to
hand in the form of adjudication had he cared to
pursue it. Failure to do so in a timely fashion, in
my view, ought not now to entitle the respondent
to the discretionary remedy of certiorari quashing
the decision of the Deputy Minister. In this con
nection, the reasoning of Mr. Justice Walsh in
Canadian Human Rights Commission v. Jones,
[1982] 1 F.C. 738 (T.D.), commends itself to me
as applicable in a case of this kind even though
that case was concerned with refusal by the Trial
Division to grant mandamus relief where the
applicant had neglected to pursue an appeal within
the statutory time limit. He stated (at pages
750-751):
Applicant did not bring any such appeal and it is conceded that
it is now too late to do so. The applicant referred to the
Supreme Court case of Harelkin v. The University of Regina in
which by a 4 to 3 decision the Court found that although the
audi alteram partem rule had been infringed when a student
was expelled from the university, his right of appeal to a senate
committee was an appropriate remedy rather than seeking
certiorari and mandamus. Applicant distinguishes this case in
that in rendering judgment of the majority Beetz J. stated at
page 567:
Nor do I agree that appellant's application for certiorari and
mandamus should have been allowed: appellant had and still
has a better alternative remedy in his right of appeal to the
senate committee; he ought to have exercised it.
In the present case this right of appeal no longer exists.
However I do not think that the Court should be given jurisdic
tion by way of mandamus which it might not otherwise have
merely because of lack of diligence by the applicant in pursuing
the right of appeal which it had. Such a finding would open the
door for the applicant, if it preferred to have a finding of the
Tribunal with which it did not agree considered and reversed by
means of a prerogative writ in the Trial Division of the Federal
Court rather than exercise its right to appeal under section 42.1
of the Act, to merely wait until the delay for such an appeal
had expired, before seeking the prerogative writ. While I am
not suggesting that the applicant had any such ulterior motive
in the present case nevertheless it appears to me that when a
statute provides a right of appeal this is the appropriate remedy
rather than to seek a mandamus, which is not intended to be an
alternative remedy, from the Federal Court.
Before leaving this aspect of appeal, I wish also
to observe that the respondent, before launching
the section 18 application, had not shown that he
had sought but failed to obtain an extension of
time for filing Form 32 from the Public Service
Staff Relations Board. As I read subsection 89(1)
of the Regulations and Rules of Procedure, it
authorized the Board to grant such an extension
either before or after the prescribed time limit
expired. I would regard the respondent's failure to
make an application under subsection 89(1) as
somewhat akin to a failure to seek leave to appeal
where a statute provides an alternative remedy in
the form of an appeal but only with leave. In such
a case it has been held the seeker of certiorari
relief is not entitled to it when the alternative
remedy is available upon the granting of leave (R.
v. R. (T.) (1983), 28 Alta L.R. (2d) 383 (Q.B.)).
In my view, however, as already noted, the
respondent cannot obtain the discretionary remedy
of certiorari when, through his own lack of dili
gence, he has not secured for himself the alterna
tive statutory remedy of adjudication.
I think the appeal should succeed on this ground
and that the order below should be quashed.
OTHER ARGUMENTS
In view of my conclusion that the order below
should be quashed on the ground that the respon
dent by failing to avail himself of an adequate
alternative remedy was not entitled to it, it
becomes unnecessary to consider the two remain
ing arguments raised by the appellants against the
order below. By those arguments the appellants
sought to, have the order below quashed on the
ground that the Trial Division had interfered with
a method provided by law for the internal settle
ment of the dispute between the respondent and
his former employer and, secondly, that as the
respondent was guilty of laches in bringing his
section 18 application he should have been denied
the relief claimed. The first of these arguments
raises issues not unlike those considered above
concerning the availability of an adequate alterna
tive remedy with this important difference. Here it
is argued that the Court should not have inter
vened by granting a writ of certiorari when the
parties to the dispute had available to them by
statute another method of resolving the grievance,
namely, through the adjudication process. I am
doubtful that the doctrine of laches would have
any application in light of the record and the
explanations given by the respondent for his delay
in launching his section 18 application until Sep-
tember 1983, notwithstanding that the reply of his
former employer at the final level grievance proce
dure was received by him in February of that same
year.
For the foregoing reasons, I would allow this
appeal with costs both here and in the Trial Divi
sion and quash the order in the nature of certiorari
made by the Associate Chief Justice on January
20, 1984.
HEALD 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.