In re Gerald William McKendry (Applicant)
Court of Appeal, Jackett C,J,, Cameron and
MacKay D.JJ.—Ottawa, February 15 and 16,
1973.
Public Service—Dismissal of public servant—Presentation
of grievance—Admissibility of evidence at hearing—Miscon-
duct of applicant subsequent to suspension—Duty of hearing
officer—Public Service Staff Relations Act, R.S.C. 1970,
secs. 91(1), 96.
Applicant, a public servant, was suspended for specified
reasons and subsequently discharged. He presented a griev
ance for adjudication pursuant to section 91(1) of the Public
Service Staff Relations Act. At the hearing the adjudicator
overruled an objection by applicant to the admission of
evidence of misconduct that came to the employer's knowl
edge subsequent to applicant's discharge but which arose
out of the same circumstances as the facts relied on in the
notice of discharge. Applicant applied for judicial review of
that decision under section 28 of the Federal Court Act.
Held, dismissing the application, in an informal hearing
under section 96 of the Public Service Staff Relations Act it
is the hearing officer's duty to accept evidence that is
relevant to any issue of fact that must be determined on a
possible view of the substantive law upon which either party
relies but without coming to a conclusion as to the appli
cable law until after all the evidence is in and he has heard
argument on it.
JUDICIAL review.
COUNSEL:
Gordon P. Killeen, Q.C. for applicant.
John A. Scollin, Q.C. for respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada,
Ottawa, for respondent.
JACKETT C.J.—This is a section 28 applica
tion to review and set aside a "decision" ren
dered on December 27, 1972 during the hearing
of a reference to adjudication under the Public
Service Staff Relations Act.
The applicant was employed as Director of
Program Analysis in the Department of Region-
al Economic Expansion, a department of the
Government of Canada created by R.S.C. 1970,
c. R-4. By a letter written on behalf of the
Deputy Minister of the Department on July 31,
1972, the applicant was "suspended" for rea
sons indicated therein; and, by a letter dated
September 18, 1972, the Deputy Minister for
mally notified the applicant that, with the
authority of Treasury Board, he was being dis
charged effective September 15, 1972.
In September, 1972, the applicant presented a
"grievance" under section 90(1) of the Public
Service Staff Relations Act, R.S. 1970, c. P-35,
which reads as follows:
90. (1) Where any employee feels himself to be aggrieved
(a) by the interpretation or application in respect of him
of
(i) a provision of a statute, or of a regulation, by-law,
direction or other instrument made or issued by the
employer, dealing with terms and conditions of employ
ment, or
(ii) a provision of a collective agreement or an arbitral
award; or
(b) as a result of any occurrence or matter affecting his
terms and conditions of employment, other than a provi
sion described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress
is provided in or under an Act of Parliament, he is entitled,
subject to subsection (2), to present the grievance at each of
the levels up to and including the final level, in the grievance
process provided for by this Act.
By the document by which the grievance was
presented, the applicant described his grievance
as follows:
Suspension without pay and benefits as per letter of J.D.
Love July 31, 1972 and discharge from public service
effective September 15, 1972, as per letter of J.D. Love
September 18, 1972.
and the corrective action sought as follows:
Restoration of position with full pay and benefit retroactive
to commencement of suspension July 31, 1972, as per letter
from G.W. McKendry to Deputy Minister Aug. 11, 1972.
By a "Notice of Reference to Adjudication"
dated October 27, 1972, the applicant referred
his grievance to adjudication under section
91(1) of the Public Service Staff Relations Act,
which reads as follows:
91. (1) Where an employee has presented a grievance up
to and including the final level in the grievance process with
respect to
(a) the interpretation or application in respect of him of a
provision of a collective agreement or an arbitral award,
or
(b) disciplinary action resulting in discharge, suspension
or a financial penalty,
and his grievance has not been dealt with to his satisfaction,
he may refer the grievance to adjudication.
In due course the applicant's grievance came
on for hearing before the Chief Adjudicator
pursuant to section 96 of the Public Service
Staff Relations 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 oppor
tunity of being heard.
(2) After considering the grievance, the adjudicator shall
render a decision thereon ... .
Early in the hearing counsel for the parties
asked the Adjudicator to rule on a question that
had arisen as to whether certain evidence could
properly be adduced by the employer. This was
evidence of misconduct that was not within the
employer's knowledge when the notice of dis
charge was given but which the employer
(a) put forward as being closely inter-con
nected with the facts relied upon in the sus
pension letter and in the discharge letter and
as arising out of the same set of circum
stances, and
(b) as being additional or alternative justifica
tion for the discharge.
The applicant objected to the evidence being
admitted on the following grounds:
(a) the applicant was seeking a statutory
remedy under sections 90, 91 and 96 of the
Public Service Staff Relations Act, which gave
him the right to "grieve" against his discharge
of August 31 on the grounds then stated, the
right to refer that particular grievance to
adjudication and the right to have the merits
of the particular grievance determined by an
adjudicator after a hearing; and
(b) the common law rule of master and serv
ant is inapplicable in principle to cases taken
to arbitration under collective agreements in
the private sector.
The Adjudicator heard argument with regard
thereto and gave a fully reasoned opinion on the
question.
Among otl. -r matters, the Adjudicator dealt
with the question whether any "injustice"
would be done if the employer were allowed to
adduce the evidence in question and said that, if
the employee finds himself taken by surprise,
his counsel has only to apply for an adjourn
ment so that a defence can be prepared and
such an application will be sympathetically con
sidered. For this and other reasons, he held that
no injustice would be done by permitting the
employer to adduce the evidence in question.
With reference to the applicant's argument
that the evidence in question should not be
admitted because the sole question before the
Adjudicator was a grievance about a discharge
based on the grounds upon which the decision
to discharge was founded, the adjudicator said:
It is my duty to give both parties an opportunity of being
heard. The employer is required in practice to go first and
attempt to justify the discharge. I am prepared to continue
hearing the employer's evidence and argument with respect
to all matters which are now of record and known to the
other party. I am also prepared to hear evidence and argu
ment in support of the employee's case that his discharge
was unjust or that he was not guilty of any misconduct or
breach of discipline. I cannot undertake to exclude all
evidence which may seem irrelevant to me or to one counsel
or the other, because I think that the language of 96(1)
requires that considerable latitude be extended to those who
have a right to be "heard".
The Adjudicator accordingly directed that the
employer would be permitted to adduce the
evidence in question.
This section 28 application is to set aside the
aforesaid decision of the Chief Adjudicator.
In this Court the applicant contended, as I
understood him, that this decision of the
Adjudicator should be set aside on the ground
that the Chief Adjudicator erred in law in hold
ing that the employer has the right to adduce
and to rely upon evidence relating to purported
additional grounds for dismissal, which grounds
came to the employer's knowledge after the
applicant had filed his grievance pursuant to
section 90 of the Public Service Staff Relations
Act and had referred the matter to adjudication
pursuant to section 91 of that Act, because
(a) the employer is only able to rely upon
those grounds giving rise to the dismissal and
not any other purported grounds that may
come to his knowledge after the date of the
dismissal, and
(b) the jurisdiction of the Chief Adjudicator
is limited to the extent that he can only hear
evidence relating to the original grounds for
dismissal upon which the grievance procedure
has been exhausted and the reference to
adjudication has been filed.
In my view, what has to be kept in mind in
this case is that the question is whether the
Adjudicator erred in law in deciding to admit
the evidence of after discovered facts.
Whether that evidence should be admitted
depends, as I understand the basic requirements
of a proper hearing, upon whether it is relevant
to any issue of fact that arises in the hearing of
the applicant's grievance.
One of the basic difficulties in appreciating
what is involved is the difficulty of ascertaining
what substantive law is to be applied by the
Adjudicator to decide whether the applicant is
to succeed on his grievance. The applicant puts
forward one submission as to what that law is
and the employer puts forward quite a different
view as to what it is. If the applicant is correct
in his view as to the law to be applied, the
Adjudicator has to make a finding of certain
facts. If the employer is correct as to the law
that applies, certain other issues of fact arise for
determination. In my view, in an informal hear
ing such as one under section 96 of the Public
Service Staff Relations Act, it is the hearing
officer's duty to accept evidence that is relevant
to any issue of fact that must be determined on
a reasonably arguable view of the case put
forward by either of the parties. It is not the
Adjudicator's duty to come to a conclusion as to
the law that applies to determine the matter
before him until after all the evidence is in and
he has heard argument on it. What he has to
decide when objection is taken to evidence is
whether that evidence is relevant to one of the
issues of fact that has to be determined on a
possible view of the substantive law upon which
one of the parties relies.' In this case, as I
understand him, this is what the Adjudicator has
done and, in my view, his decision was correct.
In coming to that conclusion for the reasons
that I have given, it must be apparent that I am
expressing no view as to what substantive law
has to be applied to the decision of a grievance
against a dismissal under section 96 of the
Public Service Staff Relations Act where there is
no collective agreement governing the matter.
In my view, the section 28 application must
be dismissed.
* * *
CAMERON D.J.—I concur.
* * *
MACKAY D.J.—I concur.
' In an ordinary action in the Courts, evidence must be
received if it is relevant to an issue of fact raised by the
pleadings. As long as a defence is reasonably arguable, for
example, it will be left in the pleadings and serve as a basis
for evidence, even though, when the case is ultimately
decided, it may be found to be without legal basis. Such
evidence was, however, legally admissible at the time that it
was admitted.
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.