A-684-77
Michel Proulx (Applicant)
v.
Public Service Staff Relations Board and Roland
Tremblay (Respondents)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, February 3; Ottawa,
March 15, 1978.
Judicial review — Public Service — Labour Relations —
Applicant dismissed from job — Grievance consolidated with
others at hearing — Adjudicator's reasons for decision not in
compliance with P.S.S.R.B. Rules of Procedure — Whether or
not decision should be set aside because of form of reasons for
decision — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, ss. 91, 99(3) — P.S.S.R.B. Regulations and Rules of
Procedure, SOR/75-604, s. 86(1).
This is a section, 28 application to set aside the Public Service
Staff Relations Board's dismissal of applicant's grievance. The
Adjudicator rendered his decision with reference to many
grievances that had been consolidated at the Union's request.
Applicant now questions whether the alleged failure of the
"decision" to comply with section 86 of the Board's Rules of
Procedure constitutes a failure of jurisdiction and whether the
failure to give a summary of applicant's arguments violated the
principles of natural justice.
Held, (Le Dain J. dissenting): the application is dismissed.
Per Jackett C.J. (Hyde D.J. , concurring): There is no breach
of the principles of natural justice that would be a ground for
invalidating the decision. The primary function of reasons is not
to ensure that justice be done but to attempt to make the
parties (particularly the unsuccessful party) realize that the
matter has been dealt with in an unbiased judicial manner and
thus, by making decisions more acceptable, make it more
probable that the process will serve its objective of substituting
due process for anarchy. There has been substantial compliance
with Regulation 86 when the Adjudicator's decision is read as a
whole. A mere deviation from prescribed form, not resulting in
an unjust decision, probably would not be sufficient of itself to
invalidate an adjudicator's decision. Further, it is doubtful that
section 99(3) authorized the Board to lay down a rigid formula
for the form of the reasons of an adjudicator's "decision" as
opposed to the form of the actual decision disposing of the
grievance, and even if it did, it is doubtful that the Regulations
would be mandatory as opposed to regulatory.
Per Le Dain J. dissenting: The requirements laid down by
section 86(1) of the Regulations relate to the form of the
decision and therefore fall within the authority conferred by
section 99 of the Public Service Staff Relations Act. The
Adjudicator's decision does not comply with those requirements
and should be treated as an error of law. A requirement in a
statute or regulation to give reasons for an administrative
decision should be considered mandatory rather than directory.
One of the chief purposes of a requirement of a statute or
regulation that an administrative tribunal give reasons for its
decision is to afford a basis for review:
Comité d'Appel du Bureau Provincial de Médecine v.
Chèvrefils [1974] C.A. 123, distinguished. Minister of
National Revenue v. Wrights' Canadian Ropes Ltd.
[1974] 1 D.L.R. 721, distinguished. Mountview Court
Properties Ltd. v. Devlin (1970) 21 P.& C.R. 689, applied.
APPLICATION for judicial review.
COUNSEL:
Paul Lesage for applicant.
André Bluteau for respondents.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of a Deputy Chairman of the
Public Service Staff Relations Board dated Sep-
tember 15, 1977.
As contemplated by section 90 of the Public
Service Staff Relations Act', the applicant pre
sented a grievance in respect of his discharge for
alleged misconduct from his position as an
employee of the Post Office Department. That
grievance having been rejected at the final level in
the grievance process, the applicant referred his
grievance to adjudication under section 91 of that
Act.
On December 29, 1975, the Deputy Chairman
who had apparently been named as adjudicator
(hereinafter referred to as the "Adjudicator")
granted a request by the Union that represented
the applicant, which request had been opposed by
the employer, that there be a consolidated hearing
of the applicant's case and the cases of a large
number of other grievors.
' R.S.C. 1970, c. P-35.
The hearing of the applicant's grievance appar
ently took place during January, 1976. The con
solidated hearing continued until July, 1977.
On April 19, 1977, the Adjudicator dismissed,
with reasons, a motion by the Union for leave to
present evidence that employees other than the
grievors committed the same offence as the grie-
vors without being disciplined.
On September 15, 1977, by a 74 page docu
ment, the Adjudicator rendered his decision with
reference to the various grievances that were the
subject of the consolidated hearing. By that docu
ment, the applicant's grievance was dismissed. A
few days later, this section 28 application was
launched to set aside that decision.
According to the applicant's memorandum in
this Court, the applicant's grievance was dismissed
as follows:
[TRANSLATION] Michel Proulx 166-2-2134
Discharged; seniority dates back to July, 1973; has no discipli
nary record.
Also alleged against Mr. Proulx are the three incidents of April
12 alleged against Mr. Faulkner; however, he is considered to
have been an abettor. The employer has proved these incidents.
He is also alleged to have forced casual employees out onto the
sidewalk in front of the Post Office on April 13.
Of all the witnesses called in his defence, only one, Mr. Lee,
inspired confidence. The latter did not contradict the allega
tions concerning the events of April 12.
The Adjudicator does not feel that he should intervene.
By his memorandum in this Court, the applicant
raises, in effect, as I understand it, two questions,
viz.:
1. Does the alleged failure of the "decision" to
comply with the requirements of section 86 of
the Commission's Rules of Procedure constitute
a refusal of jurisdiction? and
2. Is the failure to comply with section 86 by
giving a summary of the applicant's arguments a
violation of the principles of natural justice?
Section 99(3) of the Public Service Staff Rela
tions Act authorizes the Public Service Staff Rela
tions Board to make regulations in relation to the
adjudication of grievances including, _ inter alia,
regulations respecting "the form of decisions ren
dered by adjudicators". Section 86 of the Board's
Regulations and Rules of Procedure 2 reads as
follows:
86. (1) The decision of an adjudicator or a board of adjudi
cation shall contain
(a) a summary statement of the grievance;
(b) a summary of the representations of the parties;
(c) the decision on the grievance; and
(d) the reasons for the decision.
(2) A decision made by an adjudicator shall be signed by the
adjudicator.
By the memorandum filed in this Court on his
behalf, the applicant's submissions based on Regu
lation 86 are summarized as follows:
[TRANSLATION] 11—The decision of the Board handed down
on September 15, 1977 does not comply with the provisions of
section 86(1) of the Regulations, in that it does not include a
summary statement of the grievance, a summary of the
representations of the parties, the decision on the grievance or
the reasons for the decision;
12—By using the expression "shall" in section 86(1) of the
Regulations, the legislator placed a definite obligation on the
Adjudicator, and failure to fulfil this obligation affected the
exercise of his jurisdiction;
13—Indeed, section 28 of the Interpretation Act (R.S.C. 1970,
c. I-23) provides that "in every enactment ... `shall' is to be
construed as imperative";
14—The Board therefore has an obligation to act which, when
not fulfilled, results in irregularities in the exercise of its
jurisdiction, and this renders the decision invalid;
15—Dussault states at page 1392 of his text:
The first indication that the legislator intended to treat
certain procedural rules as absolute, imperative and obligato
ry is the use of the term "shall" instead of "may". Thus,
when legislation provides that an officer "shall" do a certain
thing, perform a certain action in a certain manner, it can
safely be presumed that this provision is imperative.
16—Further, Pratte J.A. of the Quebec Court of Appeal states
in Gagné v. La Brique Citadelle:
Upon reading the above-mentioned text, it can immediately
be seen that this is not an incidental provision but a com
mand that matters be ordered in the manner indicated and
no other. It is true that the text does not expressly prohibit
deviation from the provision, but this is implied in the
command.
17—The conclusion from legal theory and case law, therefore,
is that failure of an organization to comply with obligations
imposed on it by legislation with respect to the exercise of its
2 P.S.S.R.B. Regulations and Rules of Procedure, SOR/75-
604.
jurisdiction results in its decisions being invalidated when such
a breach causes serious prejudice to the parties concerned;
18—We respectfully submit that the Board's failure to comply
with the imperative provisions of section 86(1) of the Regula
tions has resulted in serious prejudice to the applicant, in
making it impossible for him to judiciously judge whether the
Board's decision can be appealed under section 28 of the
Federal Court Act, since he cannot, by reading the decision, see
whether the Board made an error of law other than that with
respect to section 86(1) of the Regulations, or whether it based
its decision on an erroneous finding of fact, arrived at in an
absurd or arbitrary manner, without taking into account facts
brought to its attention;
In considering the attacks based on Regulation
86, it is to be remembered that, at the request of
the Union acting on behalf of the applicant and
numerous other grievors, the Adjudicator had
heard all the grievances together by reason of an
argument, as reported by the Adjudicator, that he
would be "in a position to render a decision in each
case only after having heard all the evidence and
after having had an opportunity to consider the
penalty imposed by the employer on each grievor".
Having, accordingly, had a consolidated hearing of
all the grievances, the Arbitrator rendered his
decisions in a consolidated form. In the document
containing those decisions, after setting out the
course of events, the Adjudicator devoted over ten
pages to an explanation of the history of the
matter that was common to all the cases, to an
explanation of his plan for appraising the individu
al cases, which reads as follows:
[TRANSLATION] CRITERIA FOR THE ANALYSIS OF THE
EVIDENCE
In order to analyze the evidence presented before him and to
reach a decision which takes all of the criteria into account, the
Adjudicator has applied the principles of law set forth below.
He has also prepared a chart showing the names of all of the
complainants, together with the facts relevant to their cases.
This comparison chart will be explained later.
to an explanation of the legal principles that he
proposed to apply and to the chart that he had
prepared to compare the situations of the respec
tive grievors with each other. He then introduced
his discussion of the individual grievances as
follows:
[TRANSLATION] THE EVIDENCE AND THE FACTS IN EACH
CASE
The Adjudicator now intends to examine the case of each
complainant individually. The grievances will not be quoted but
the following facts will be given: the disciplinary measure which
the complainant is contesting, the complainant's seniority, his
disciplinary record, whether or not he is a union steward, the
act alleged and the evidence presented.
Once all the cases have been examined, the Adjudicator will
state his conclusion and decisions in each case, ruling on
whether the measure imposed was appropriate or whether
another should be substituted for it.
(With reference to this introduction it is to be
noted that the Adjudicator says that the griev
ances will not be set out as such but the discipli
nary action complained of will be set out.) Having
done all that, the Adjudicator proceeded to discuss
the respective grievances and it is pertinent to
repeat here what he said about that of Gilbert
Faulkner as well as what he said about that of the
applicant, viz.:
[TRANSLATION] 1 --GILBERT FAULKNER 166-2-2124
Discharged; seniority dates back to May, 1968; record con
tains reprimands and three suspensions; was a union steward.
He is accused of having incited the ejection of casual workers
on April 12, of having instigated a work stoppage and occupied
a secretarial office for an entire day, and of having jostled
supervisors at the door of the Post Office building. All of this
took place during a visit to the premises by the Postmaster
General.
In this instance, it has been proved beyond a doubt that the
complainant was the leader in each of the three incidents
alleged against him and that he even climbed onto a cart and
harangued the crowd. This is one instance in which the
Adjudicator does not feel he should intervene.
5—MICHEL PROULX 166-2-2134
Discharged; seniority dates back to July, 1973; has no disci
plinary record.
Also alleged against Mr. Proulx are the three incidents of
April 12 alleged against Mr. Faulkner; however, he is con
sidered to have been an abettor. The employer has proved these
incidents.
He is also alleged to have forced casual employees out onto
the sidewalk in front of the Post Office on April 13.
Of all the witnesses called in his defence, only one, Mr. Lee,
inspired confidence. The latter did not contradict the allega
tions concerning the events of April 12.
The Adjudicator does not feel that he should intervene.
In my view, there is considerable doubt that
section 99(3) authorized the Board to lay down a
rigid formula for the "form" of the reasons for an
adjudicator's "decision" as opposed to the "form"
of the actual decision disposing of a grievance. In
addition, even if the Board's regulation-making
power does extend to making regulations concern
ing the "form" of an adjudicator's reasons, I doubt
that regulations so made are mandatory as
opposed to permissive. That is, I doubt that a mere
deviation from the prescribed form that does not
result in a possibly unjust decision will, of itself, be
sufficient to invalidate an adjudicator's decision. I
put aside those doubts, however, because, assum
ing that there is nothing in those doubts, in my
view there has been a substantial compliance with
Regulation 86 when the Adjudicator's decision is
read as a whole in the context of the whole pro
ceeding. As it seems to me, reading the decision as
a whole, it is clear that certain general arguments
were put forward on behalf of all the grievors and
the Adjudicator clearly explained what principles
he applied in the respective cases as a result of
such arguments. With regard to the grievor him
self, there can be no doubt from a reading of the
decision that the specific questions raised were:
(a) had the acts of misconduct been properly
proved?
(b) was the discharge an excessive exercise of
discipline?
With regard thereto, the Adjudicator explained
what misconduct he found against the applicant,
although his explanation is not as clear as it might
have been, and, by means of his chart, how he has
appraised the applicant's misconduct in relation to
that of others in reaching his conclusion as to the
fairness of the discharge having regard to such
misconduct. 3
I find no merit in the contention of the applicant
that he has been deprived, by the alleged failure to
comply with Regulation 86, of an opportunity of
considering seeking relief against such decision,
under section 28 of the Federal Court Act. As it
seems to me, the Adjudicator has made it perfectly
clear what he has found against the applicant and
what legal principles and methods he has applied
in so doing.
The copy of the "chart" in the case material presented to
the Court was illegible. It appears that the copy sent to the
applicant was also illegible. That is not, however, a ground of
complaint, even if reasons are a condition precedent to the
validity of the decision, when, admittedly, no attempt had been
made on the part of the applicant to have a legible copy
supplied.
With reference to the second branch of the
applicant's attack on the Adjudicator's decision,
the applicant's submissions are set out in his
memorandum as follows:
[TRANSLATION] 19—Alternatively, and without prejudice to
the foregoing, we submit that the Board's failure to comply
with section 86(1)(d), that is, to give reasons for its decision, is
also a breach of the rules of natural justice by which justice
must not only be done, but must be seen to have been done;
20—In a recent decision, the Quebec Court of Appeal stated
that failure of the Conseil de discipline du Collège des médecins
et chirurgiens de la Province de Québec [disciplinary board of
the Quebec college of physicians and surgeons] and the Comité
d'Appel du Bureau Provincial des Médecins [appeal board of
the provincial bureau of physicians] to give reasons for their
decisions when expressly required by the Regulations consti
tutes a breach of the rules of natural justice, resulting in their
decisions being invalidated.
Comité d'Appel du Bureau Provincial de Médecine [sic] v.
Paul-Emile Chevrefils, [19741 C.A. 123.
Page 127, Gagnon J.A.:
Such a disciplinary power must be exercised in accordance
with the Act and Regulations which the professional corpora
tion has seen fit to impose on its disciplinary agencies, and
must comply with the requirements of natural justice. I
would go so far as to say that an agency to which the
legislator has given such power over its members must
adhere strictly to the applicable procedural rules.
In its wisdom and to protect its members who are brought
before a disciplinary board, the College has required that the
Board give reasons for its decision. In the case at bar, the
disciplinary board did not meet this requirement, and I
believe that this is more than mere departure from form, and
that its decision is therefore null and void. (Emphasis is
ours.)
21—We find it inconceivable and also contrary to the princi
ples of natural justice that an organization such as the Board
can render a decision such as that in the case at bar when the
hearing of the applicant's grievance took nearly two (2) days,
twenty (20) witnesses were heard, and five hundred and one
(501) pages of shorthand notes were transcribed. Such an
attitude is at the very least an abuse of the power given to the
Board;
22—The least that can be said about the decision rendered is
that justice is not seen to have been done, in spite of the fact
that section 86 of the Regulations was enacted to guard against
this;
I find no breach of the principles of natural
justice, as I understand them, that would be a
ground for invalidating the decision that is the
subject matter of this application. There is no
suggestion that the applicant was not given ample
opportunity to answer what was alleged against
him. There is no suggestion of bias on the part of
the Adjudicator. These two branches of natural
justice constitute the established principles of
natural justice as I have knowledge of them.
In this case, there is, in my view, no question of
a failure to give reasons for the decision attacked,
as I have explained above. Even if no reasons had
been given, that, in itself, would not in my view be
a breach of the rules of natural justice that would
invalidate the decision. 4 (In certain circumstances,
the absence of such reasons might be a basis for
concluding that there had been a pre-decision
breach of natural justice principles that would be a
ground for invalidating the decision but that is a
matter of evidence and not of substantive law—
compare M.N.R. v. Wrights' Canadian Ropes
Ltd. 5 ) As I understand it, the primary function of
reasons is not to ensure that justice be done but is
to attempt to make the parties (particularly the
unsuccessful party) realize that the matter has
been dealt with in an unbiased judicial manner and
thus, by making decisions more acceptable, make
it more probable that the process will serve its
objective of substituting due process for anarchy. 6
In any event, even if a failure to give reasons
suitable to serve that end were, in itself, a breach
of the principles of natural justice that would serve
as a ground for invalidating a decision, there is,
here, in my view, no such failure. Natural justice
is, as I understand it, a matter of substance and
not of form.
In my view, the section 28 application should be
dismissed.
* * *
4 A statutory requirement of reasons may, in certain cases,
well be a statutory condition precedent to the validity of a
decision. This was apparently the case in the legislation govern
ing the termination of the legal status of an individual that was
being considered by the Quebec Court of Appeal in Comité
d'Appel du Bureau Provincial de Médecine v. Chèvrefils
[1974] C.A. 123. It is easy to understand that a legislature may
require that a person is not to be deprived of his status in the
economic world until it has been explained to him in a formal
manner that all requirements—legal and procedural—have
been complied with.
5 [1947] 1 D.L.R. 721 at pp. 731-732.
6 Formulation of reasons also serves the very important pur
pose of ensuring that the tribunal has satisfied itself that it has
dealt with all relevant problems in the manner required by the
applicable legal principles. Other functions of reasons such as
fending off legal attacks on the decision and creating jurispru
dence are, in my view, of a very secondary character.
HYDE D.J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting): I have had the advan
tage of reading the reasons of the Chief Justice but
I regret that I am unable to agree with the conclu
sion reached by him.
The Adjudicator undoubtedly had a difficult
task in attempting to deal adequately in a single
document with 95 grievances, but in my opinion
his decision on the applicant's grievance does not
comply with the requirements of section 86(1) of
the P.S.S.R.B. Regulations and Rules of
Procedure'. It does not contain a summary of the
representations of the parties nor a sufficient state
ment of the reasons for the decision. It does not
afford any basis for review, which, I think, is one
of the chief purposes of a requirement in a statute
or regulation that an administrative tribunal give
reasons for its decision 8 .
What is required when there is a duty to give
reasons was considered by Lord Parker C.J. in
Mountview Court Properties Ltd. v. Devlin 9 as
follows:
What reasons are sufficient in any particular case must, of
course, depend upon the facts of the case. I approach the
matter in this way: that reasons are not deficient merely
because every process of reasoning is not set out. I further think
that reasons are not insufficient merely because they fail to
deal with every point raised before the committee at the
hearing. Indeed, I would adopt the words used by Megaw J. in
Re Poyser and Mills' Arbitration [11964] 2 Q.B. 467]. That
was dealing with an arbitrator's award, but Megaw J. said
[[1964] 2 Q.B. 467, 477-478]:
The whole purpose of section 12 of the Tribunals and In
quiries Act 1958 was to enable persons whose property, or
whose interests, were being affected by some administrative
decision or some statutory arbitration to know, if the decision
was against them, what the reasons for it were. Up to then,
' 86. (1) The decision of an adjudicator or a board of
adjudication shall contain
(a) a summary statement of the grievance;
(b) a summary of the representations of the parties;
(c) the decision on the grievance; and
(d) the reasons for the decision.
8 Iveagh (Earl of) v. Minister of Housing and Local Govern
ment [1962] 2 Q.B. 147 at 160; [1964] 1 Q.B. 395 at 405, 410,
413; Westminster Bank Ltd. v. Beverley Borough Council
[1969] 1 Q.B. 499 at 508.
9 (1970) 21 P.& C.R. 689 at pp. 692-693.
people's property and other interests might be gravely affect
ed by a decision of some official. The decision might be
perfectly right, but the person against whom it was made was
left with the real grievance that he was not told why the
decision had been made. The purpose of section 12 was to
remedy that, and to remedy it in relation to arbitrations
under this Act. Parliament provided that reasons shall be
given, and in my view that must be read as meaning that
proper, adequate reasons must be given. The reasons that are
set out must be reasons which will not only be intelligible,
but which deal with the substantial points that have been
raised.
A little further down, he said [Ibid. 478]:
I do not say that any minor or trivial error, or failure to give
reasons in relation to every particular point that has been
raised at the hearing
—and he was dealing with an error of law on the face of an
award—"would be sufficient ground for invoking the jurisdic
tion of this Court."
Apart from certain general principles which the
Adjudicator dealt with adequately in his introduc
tory analysis there were two questions before him
with respect to the applicant's grievance:
1. Were the acts of misconduct which were
invoked by the employer to justify the dismissal
established by the evidence?
2. Was the disciplinary action of dismissal out
of proportion to the conduct complained of?
The extent of the hearing with respect to the
applicant's grievance and of the evidence that was
adduced was described by the parties before us in
their respective memoranda by an identical para
graph as follows:
[TRANSLATION] The hearing of the applicant's grievance
began on January 13, 1976 and continued on January 20, 21
and 29 of the same year. In the course of the hearing, twelve
(12) witnesses for the employer and eight (8) witnesses for the
applicant were heard. The testimony of these witnesses required
the transcription of five hundred and one (501) pages of
shorthand notes (Board documents, pages 5 to 10);
What the Adjudicator said that he proposed to
do by way of analysis of the issues is set out under
the heading "LA PREUVE ET LES FAITS" as
follows:
[TRANSLATION] The Adjudicator now intends to examine
the case of each complainant individually. The grievances will
not be quoted but the following facts will be given: the discipli
nary measure which the complainant is contesting, the complai
nant's seniority, his disciplinary record, whether or not he is a
union steward, the act alleged and the evidence presented.
Once all the cases have been examined, the Adjudicator will
state his conclusion and decisions in each case, ruling on
whether the measure imposed was appropriate or whether
another should be substituted for it.
The conclusions on the Proulx grievance must be
read with those of the Faulkner grievance to which.
they make reference. Together they constitute
such analysis of the issues with respect to the
applicant's grievance as is to be found in the
Adjudicator's decision. The passages in question
are as follows:
[TRANSLATION] 5—MICHEL PROULX 166-2-2134
Discharged; seniority dates back to July, 1973; has no disci
plinary record.
Also alleged against Mr. Proulx are the three incidents of
April 12 alleged against Mr. Faulkner; however, he is con
sidered to have been an abettor. The employer has proved these
incidents.
He is also alleged to have forced casual employees out onto
the sidewalk in front of the Post Office on April 13.
Of all the witnesses called in his defence, only one, Mr. Lee,
inspired confidence. The latter did not contradict the allega
tions concerning the events of April 12.
The Adjudicator does not feel that he should intervene.
1 --GILBERT FAULKNER 166-2-2124
Discharged; seniority dates back to May, 1968; record con
tains reprimands and three suspensions; was a union steward.
He is accused of having incited the ejection of casual workers
on April 12, of having instigated a work stoppage and occupied
a secretarial office for an entire day, and of having jostled
supervisors at the door of the Post Office building. All of this
took place during a visit to the premises by the Postmaster
General.
In this instance, it has been proved beyond a doubt that the
complainant was the leader in each of the three incidents
alleged against him and that he even climbed onto a cart and
harangued the crowd. This is one instance in which the
Adjudicator does not feel he should intervene.
Under the heading "CONCLUSIONS ET DECI
SIONS" at the end of the Adjudicator's decision
there is simply the notation after the name of the
applicant—[TRANSLATION] "grievance dis
missed".
The above reasons are in my opinion little more
than an expression of the Adjudicator's conclusion
on the two questions before him—in other words,
of the decision itself. They do not reflect the issues
with respect to the appreciation of the evidence or
the appropriateness of the disciplinary action.
They are, moreover, ambiguous on an important
particular: the findings of the Adjudicator as to
the acts of April 13, as distinct from those of April
12. This ambiguity arises from the absence of any
reference to proof of the acts of April 13 and from
the statement [TRANSLATION] "Of all the wit
nesses called in his defence, only one, Mr. Lee,
inspired confidence. The latter did not contradict
the allegations concerning the events of April 12".
The [TRANSLATION] "Comparison Chart",
while perhaps an aid to the Adjudicator in main
taining his comparative perspective, contains nota
tions for 95 grievances on a single side of the sheet,
and in being reduced to letter size to fit into the
decision, has obviously been rendered illegible. I
do not think it is simply a question of the clarity of
the photocopying; it appears to be a question of
size. In any event, the information noted on the
"Comparison Chart", as appears from the descrip
tion of it at pages 16-17 of the decision, is of such
a summary nature as to throw little or no addition
al light upon the reasons for decision.
The importance of a requirement in statute or
regulation to give reasons for an administrative
decision is' such that in my opinion it should be
considered to be mandatory rather than directory.
There seems to be general agreement in the
authorities that such a requirement is mandatory
in the sense that a mandamus should lie to compel
compliance with it, but there has been an apparent
difference of view as to whether a failure to
comply with the requirement is an error of law 10 . I
prefer the view that would treat it as an error of
law for which a decision may be set aside.
I should add before concluding that in my opin
ion the requirements laid down by section 86(1) of
the Regulations relate to the form of the decision
and therefore fall within the authority conferred
by section 99(3)(d) of the Public Service Staff
10 Compare Brayhead (Ascot) Ltd. v. Berkshire County
Council [1964] 2 Q.B. 303 at 313; In re Poyser and Mills'
Arbitration [1964] 2 Q.B. 467 at 478; Givaudan & Co. Ltd. v.
Minister of Housing and Local Government [1967] 1 W.L.R.
250 at 257; Regina v. Industrial Injuries Commissioner, ex
parte Howarth (1968) 4 K.I.R. 621 at 626, 627; Mountview
Court Properties Ltd. v. Devlin (1970) 21 P.& C.R. 689 at
693-695, 696; In re Allen and Matthews' Arbitration [1971] 2
Q.B. 518 at 524, 526; de Smith, Judicial Review of Adminis
trative Action, 3rd ed., 117, 130.
Relations Act ".
For the foregoing reasons I would allow the
section 28 application, set aside the decision of the
Adjudicator in respect of the applicant's grievance
and refer the matter back for reconsideration and
decision in compliance with section 86 of the
P.S.S.R.B. Regulations and Rules of Procedure
on the proof and argument that has already been
made before the Adjudicator.
" See In re Poyser and Mills' Arbitration, supra, at 478,
where Megaw J. said of a statutory requirement to give rea
sons: "In my view, it is right to consider that statutory provision
as being a provision as to the form which the arbitration award
shall take".
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.