A-247-78
In re Public Service Staff Relations Board deci
sion dated May 3, 1978 (File 166-2-3077)
Court of Appeal, Jackett C.J., Heald and Ryan
JJ.—Ottawa, November 28 and 30, 1978.
Judicial review — Public Service — Court of Appeal, on
section 28 application, referred matter back to Adjudicator for
further consideration and for a decision on basis of certain
directions — Adjudicator deciding to withdraw from case —
Application to set aside Adjudicator's decision to withdraw —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss.
90, 91, 92 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
After the Court of Appeal gave judgment pursuant to section
28 of the Federal Court Act that a decision of a member of the
Public Service Staff Relations Board acting as Adjudicator be
set aside and referred back for further hearing and consider
ation, and for a decision on the basis of certain directions, the
Adjudicator rendered a "decision" expressing his decision to
withdraw from the case and his reasons for doing so. This
section 28 application is to set aside that "decision".
Held, the application is dismissed. Mr. O'Shea's decision of
May 3, 1978 is not a "decision" within section 28 of the
Federal Court Act. It does not purport to decide anything that
may be decided by a board member acting as an adjudicator
and he does not, thereby, as an adjudicator, "refuse to exercise"
any jurisdiction vested in adjudicators by the Public Service
Staff Relations Act. All that decision does is indicate Mr.
O'Shea's personal decision not to act as "adjudicator" in the
particular case, making it clear that, in his view, "some other
adjudicator should make the necessary determination in this
matter".
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. for Sant P. Singh.
Walter Nisbet, Q.C. and Michael A. Kelen for
Deputy Attorney General of Canada.
No one appearing for Public Service Staff
Relations Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for Sant P. Singh.
Deputy Attorney General of Canada for
Deputy Attorney General of Canada.
J. D. McCormick, Public Service Staff Rela
tions Board, Ottawa, for Public Service Staff
Relations Board.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a "decision" of a member of the Public
Service Staff Relations Board acting as an
adjudicator.
The events leading up to the application may be
summarized as follows:
(a) On February 2, 1977, the applicant present
ed a grievance, under section 90(1) of the Public
Service Staff Relations Act, R.S.C. 1970, c.
P-35,' that the appropriate collective agreement
had "not been applied properly with respect to"
his pay;
(b) By the collective agreement in question, an
employee in the position to which the applicant
had been appointed on January 1, 1970 was
entitled to be paid in accordance with a certain
scale of rates but, by virtue of a part of the
agreement hereinafter referred to as "note 5",
an increase from the fifth rate in the scale to the
sixth rate required a "recommendation of a
departmental ... committee and the approval of
the deputy head", and, by virtue of "note 6",
there was a requirement that a "departmental
... committee ... review the performance" of
' Subsection (1) of section 90 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.
such an employee within 2 years from the date
of appointment to the relevant scale of rates and
it was further required that, if his rates were not
then increased, his performance be further
reviewed each year until his pay was increased
"in accordance with Note(s) ... (5)";
(c) In May, 1977, that grievance not having
been dealt with to his satisfaction, it was
referred to adjudication under section 91(1) z of
the Act;
(d) On August 8, 1977, J. D. O'Shea, Q.C., a
Board Member and Adjudicator, rendered a
"decision" in which he expressed the view that
he had jurisdiction under section 91(1) (b) by
reason of certain facts that he found "could
properly be characterized as disciplinary action"
as a result of which the applicant "sustained a
financial penalty" and made an "award" direct
ing the Deputy Head "to approve the placement
of the grievor's salary above the barrier effective
as of January 1, 1975, in accordance with the
recommendation of the first Assessment Com
mittee";
(e) On January 7, 1978, this Court gave judg
ment, under section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, setting that
decision aside and referring the matter back for
further hearing and consideration and for a
decision on the basis
(a) that note 6 in the Appendix to the relevant collective
agreement has never been complied with in respect to the
respondent,
(b) that the Adjudicator cannot carry out the functions of
the Committee or deputy head referred to in note 5 in the
said Appendix, and
(c) that the Adjudicator should decide what relief the
respondent is entitled to, after hearing such evidence, if
any, as the parties submit with regard thereto.
(f) On May 3, 1978, Mr. O'Shea rendered a
"decision" by which he expressed his decision to
2 Subsection (1) of section 91 reads:
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 wish to his satisfaction,
he may refer the grievance to adjudication.
"withdraw from this case" and his reasons
therefor.
This section 28 application is to set aside Mr.
O'Shea's "decision" of May 3, 1978.
In my view, Mr. O'Shea's decision of May 3,
1978 is not a "decision" within section 28 of the
Federal Court Act. It does not purport to decide
anything that may be decided by a board member
acting as an adjudicator and he does not, thereby,
as an adjudicator, "refuse to exercise" any juris
diction vested in adjudicators by the Public Ser
vice Staff Relations Act. All that the "decision"
does is indicate Mr. O'Shea's personal decision not
to act as "adjudicator" in the particular case,
making it clear that, in his view, "some other
adjudicator should make the necessary determina
tion in this matter". I am, therefore, of opinion
that the section 28 application should be
dismissed.
In reaching this conclusion, I should say that I
am in agreement with the view, apparently held by
Mr. O'Shea, that the reference back under section
52(d) of the Federal Court Act, by this Court's
judgment of January 17, 1978 (Attorney General
v. Sant P. Singh) may be acted upon by any
member of the Board "assigned" to act as
adjudicator in the matter under section 92 of the
Public Service Staff Relations Act, as amended by
S.C. 1974-75-76, c. 67, s. 24. 3 It is to be hoped
that, upon reconsideration, Mr. O'Shea will
change his decision not to do so. I have no doubt
that he is in a much better position to complete the
case than any other member of the Board could be.
Before leaving the matter, in view of the
obscurity that Mr. O'Shea has found in this
Court's decision of January 17, 1978, I should
make some comment thereon.
In the first place, I have no present recollection
with regard thereto. It is, apparently, one of the
many judgments rendered by this Court—particu-
larly in section 28 applications—where, after a full
exchange of views between the Court and counsel,
3 Section 92 as amended reads:
92. The Board shall assign such members as may be
required to hear and adjudicate upon grievances referred to
adjudication under this Act.
it seems to be clear to all what conclusion the
Court has reached and what reasoning has led it to
that conclusion. In such cases, where no new legal
principle is involved, not only is there no necessity
to take time to prepare detailed reasons but doing
so would result in delays in the disposition of
section 28 applications generally that would be
inconsistent with section 28(5) of the Federal
Court Act. 4
Having said that, I can only add that a perusal
of the record makes it clear to me that, by its
judgment of January 17 last, this Court decided
(a) that the Arbitrator cannot, by his award,
carry out the functions of the Committee or
deputy head referred to in note 5, and that it
therefore followed that his award, whereby he
purported to exercise the discretion of the
deputy head, had to be set aside; and
(b) that there had been breaches of the collec
tive agreement (when note 6 is read with note 5)
in that there had been no report of a department
committee, in the case of the applicant, at the
various times contemplated by note 6, uncondi
tionally recommending either that he be, or be
not, granted the higher rate of pay;
and, having so decided, the Court referred the
matter back for a decision as to what relief should
be awarded to the applicant for such breaches.
As already indicated, my view is that the section
28 application should be dismissed.
* * *
HEALD J. concurred.
* * *
RYAN J. concurred.
Subsection (5) of section 28 reads:
28. ...
(5) An application or reference to the Court of Appeal
made under this section shall be heard and determined
without delay and in a summary way.
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.