A-718-80
Evie Arghiri (Applicant)
v.
J. L. Manion, Chairman of the Canadian Employ
ment and Immigration Commission, and the
Deputy Attorney General of Canada (Respond-
ents)
Court of Appeal, Thurlow C.J., Urie J. and Kerr
D.J.—Ottawa, January 19 and February 5, 1981.
Practice — Motion to strike pleadings — Application to
quash application for judicial review — Applicant was sum
marily dismissed from her position at the Canadian Embassy
in Athens Whether applicant's position was held during
pleasure only Whether respondent had a duty to act in a
judicial or quasi-judicial manner Motion is dismissed
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28
Interpretation Act, R.S.C. 1970, c. 1-23, ss. 22(1), 23(1).
The respondent applies to quash the application for judicial
review for lack of jurisdiction. The applicant applied for judi
cial review of her summary dismissal from her position at the
Canadian Embassy in Athens on the grounds that the respond
ent failed to observe the principles of natural justice, and that
he was without jurisdiction to dismiss her and refuse her a
pension. The Court record was not filed. The first question is
whether the applicant's position was held during pleasure, and
accordingly the applicant could be dismissed without a hearing.
The second question is whether the respondent had a duty to
exercise his authority to dismiss the applicant in a judicial or
quasi-judicial manner, the answer to which depends upon
whether the questions formulated in Minister of National
Revenue v. Coopers and Lybrand [1979] 1 S.C.R. 495 have
been positively answered. Those questions are: (1) Is there
anything in the language in which the function is conferred or
in the general context in which it is exercised which suggests
that a hearing is contemplated before a decision is reached? (2)
Does the decision affect the rights and obligations of persons?
(3) Is the adversary process involved? (4) Is there an obligation
to apply substantive rules to many individual cases rather than
the obligation to implement social and economic policy in a
broad sense?
Held, the motion is dismissed.
Per Thurlow C.J.: With respect to the first question, there is
not sufficient information in the material before the Court to
determine the nature of the position held by the applicant and
it is not clear that that position was one to which the respond
ent had appointed her or had authority to appoint her. With
respect to the second question, this situation is a classic one for
the implication that the decision to dismiss must be made on a
judicial or quasi-judicial basis. The only ground for dismissal is
misconduct. Accordingly., a quasi-judicial basis is indicated
only because "misconduct" is not defined and no standards
have been prescribed and that may admit of some flexibility
and the application of policy considerations in the determina-
tion. With respect to the first criterion enunciated by the
Supreme Court of Canada, the existence of a power to dismiss
for misconduct, and particularly one found in a general context
where a power to suspend for misconduct and for negligence in
the performance of duties is subject to procedural and judicial
safeguards, suggests that the exercise of the greater power to
dismiss for misconduct is also to be subject to judicial safe
guards. As to (2), the decision to dismiss for misconduct
directly and seriously affects the employee both in the loss of
employment and in consequential effects on rights incidental to
his employment. As to (3), whenever the assertion of miscon
duct is not admitted, there is an adversary process and a lis.
With respect to (4), this is not a case of power to formulate or
implement social or economic policy in a broad sense. It is a
case of applying the concept to an individual case for the
purpose of determining its existence or not. All four criteria
point to the power of dismissal being one that is required by law
to be exercised on a judicial or quasi-judicial basis.
Per Urie J.: The motion is dismissed on the ground that the
material before the Court is insufficient.
Minister of National Revenue v. Coopers and Lybrand
[1979] 1 S.C.R. 495, applied. Nicholson v. Haldimand-
Norfolk Regional Board of Commissioners of Police
[1979] 1 S.C.R. 311, referred to. Ridge v. Baldwin [1964]
A.C. 40, referred to. Cooper v. Wandsworth Board of
Works (1863) 14 C.B.N.S. 180, referred to. Martineau v.
Matsqui Institution Disciplinary Board [1980] 1 S.C.R.
602, referred to.
APPLICATION.
COUNSEL:
J. Bruce Carr-Harris for applicant.
W. L. Nisbet, Q.C. for respondents.
SOLICITORS:
Scott & Aylen, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application by the
respondent for an order quashing on the ground
that the Court does not have jurisdiction to enter
tain it an application brought by the applicant,
Evie Arghiri, under section 28 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to
review and set aside a decision made by the
respondent on or about June 1, 1978, "wherein the
applicant was dismissed from her position with the
Canadian Embassy at Athens by virtue of section
6.48 of the Regulations for Locally-Engaged
Staffs Abroad (1956) and wherein it was decided
that she would not receive a pension by virtue of
section 14(1)(g) of the Regulations Relating to
Pensions for Locally-Engaged Employees pub
lished by the Treasury Board."
The originating notice of application alleges as
grounds:
(1) That the Respondent, Mr. Manion, failed to observe the
principles of natural justice in refusing the Applicant an oppor
tunity to hear the allegations made against her and to make
some defence prior to dismissing the Applicant and denying her
a pension;
(2) That the Respondent, Mr. Manion, was without jurisdic
tion to dismiss the Applicant and refuse her a pension after 24
years of satisfactory service.
The objection to the jurisdiction of the Court
raised by the respondent is that the decision so
attacked was an administrative decision that was
not required by law to be made on a judicial or
quasi-judicial basis and accordingly was not a
decision of the kind which the Court has jurisdic
tion to review under section 28 of the Federal
Court Act'.
On a motion to quash at this stage it is, I
apprehend, incumbent on the party bringing the
motion to put before the Court in an acceptable
form the facts which show that the proceeding is
not one of the kind the Court can properly enter
tain. In the present instance, the record required
by Rule 1402(3) to be forwarded to the Court for
the purpose of determining the section 28 applica
tion has not been filed and the material on which
the motion must be decided is scanty. It appears to
me to afford an incomplete and unsatisfactory
basis for determining the validity of points raised
by the respondent on which the jurisdiction of the
Court depends.
' 28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal ...
The material consists of (1) several paragraphs
contained in a memorandum of argument on the
motion filed on behalf of the applicant, which
were, for the purposes of this motion, adopted at
the hearing by counsel for the respondent, and (2)
an affidavit of Bernard Brodie, filed on behalf of
the respondent in support of the motion to quash.
The paragraphs from the applicant's memoran
dum are as follows:
(a) The Applicant is a Greek citizen and was hired as an
office secretary at the Canadian Embassy in Athens in
February of 1954.
(b) More than 24 years later, the Applicant having been
promoted to the level of Immigration Program Officer and
having a work record described as "fully satisfactory", she
was summarily dismissed on grounds of alleged misconduct
relating to the "misuse of her position".
(c) The decision to dismiss the Applicant included extin-
guishment of her pension rights based upon her 24 years of
employment.
(d) Both before and after the effective date of her dismissal,
being July 7th, 1978, the Applicant consistently requested
specification of the allegations against her and an opportu
nity to respond thereto but her requests were consistently
refused.
(e) As a result of her dismissal the Applicant is only able to
obtain casual employment in Greece as she is without a
Work Certificate relating to her position of over 24 years
with the Canadian Embassy. In addition the Applicant is
considered by her National Insurance Fund Organization to
have been a permanent member of the Canadian government
service and as such has no right to receive a pension from the
Greek authorities.
3. At the time of the Applicant's dismissal, the Applicant's
employment was governed by the Regulations Governing
Employment of Staffs Engaged Locally Outside Canada
(1956).
The Brodie affidavit reads as follows:
I, BERNARD BRODIE, of the City of Ottawa, in the Province of
Ontario, Public Servant, make oath and say as follows:
1. That in or about the month of October 1977 I assumed
duties as the Special Projects Officer, Foreign Branch, Employ
ment and Immigration Commission, Ottawa, and on or about
June 28, 1978 I assumed the duties and responsibilities of the
Chief, Personnel Administration, Foreign Branch, Employment
and Immigration Commission, Ottawa, and while performing
the duties of those positions I had complete access to the
personnel records of the Foreign Branch, Employment and
Immigration Commission, including those pertaining to the
Applicant, and the facts hereinafter deposed to are based on my
examination of those records.
2. The Respondent J.L. Manion, was Chairman of the Employ
ment and Immigration Commission at all times relevant to
these proceedings and remained Chairman until August 31,
1979. The Applicant commenced employment as a member of
the locally engaged staff employed at the Canadian Embassy,
Athens, Greece, on February 4, 1954. Her employment at that
Embassy continued until July 7, 1978, on which date her
dismissal became effective. At the time of her dismissal the
Applicant was employed as an Immigration Program Assistant.
3. The Applicant was employed pursuant to the Regulations
governing employment of staffs engaged locally outside Canada
approved by the Treasury Board on April 12, 1956 and made
pursuant to paragraph 7(c) of the Financial Administration
Act, R.S.C. 1952, c. 116. These Regulations are now produced
and shown to me and marked Exhibit "A" to this my Affidavit.
The Regulations marked Exhibit "A" to this my Affidavit were
replaced by the Locally Engaged Staffs' Terms and Conditions
Regulations approved by the Treasury Board on July 17, 1978
and made pursuant to paragraph 5(e) of the Financial
Administration Act, R.S.C. 1970, c. F-10. Now produced and
shown to me and marked Exhibit "B" to this my Affidavit is a
copy of the Locally Engaged Staff Terms and Conditions
Regulations.
4. The Respondent J.L. Manion, in the exercise of his authority
as Chairman of the Employment and Immigration Commission
(a position he held by virtue of his appointment as Deputy
Minister of Employment and Immigration) decided on June 1,
1978 to discharge the Applicant. The Applicant was advised by
letter dated June 20, 1978 that she would be discharged from
her employment effective July 7, 1978. A copy of the letter of
June 20, 1978 is now produced and shown to me and marked
Exhibit "C" to this my Affidavit.
5. As a person employed pursuant to the Regulations governing
employment of staffs engaged locally outside Canada (1956),
the Applicant's terms and conditions of employment did not
include the right to present a grievance concerning the interpre
tation of application in respect of her of any term or condition
of her employment or concerning any termination of her
employment by her superiors. Nor do these Regulations express
any tenure of employment for the Applicant other than during
pleasure only.
6. By Section 5.2.2, the Locally Engaged Staffs' Terms and
Conditions Regulations (1978), provision is made for the pres
entation of grievances by persons to whom those Regulations
apply concerning the termination of employment of such per
sons initiated by the relevant Head of Post Abroad. The
grievance procedure so provided does not include the right to
refer any grievance for review to a third party and the reply of
the Deputy Head at the final level of the procedure is final and
conclusive as against the aggrieved employee for all purposes.
See subparagraph 5.2.2(5) of the Regulations.
7. The Locally Engaged Staffs' Terms and Conditions Regula
tions (1978) were not distributed to Canadian Posts abroad
until approximately nine months after their approval by the
Treasury Board on July 17, 1978.
8. The Applicant made no attempt to invoke the grievance
procedure prescribed by Section 5.2.2 of the Locally Engaged
Staffs' Terms and Conditions Regulations (1978) although she
did complain in writing about the termination of her
employment.
9. The Applicant's complaint was considered by the Respond
ent J.L. Manion and others then under his managerial author
ity and was rejected. In giving consideration to the Applicant's
complaint the Respondent J.L. Manion was acting as a senior
representative of one of the parties to the difference or dispute
concerning the Applicant's termination of employment, i.e., the
employer. He was not acting as a Judge or Adjudicator. In
deciding to discharge the Applicant and to reject her complaint
against her discharge the Respondent J.L. Manion was acting
in a purely administrative capacity, and his decision was not
required by law to be made on a judicial or quasi-judicial basis.
10. The Applicant while employed at the Canadian Embassy in
Athens was a "Public Officer" within the meaning of that
expression as defined in sub-section 2(1) of the Interpretation
Act, R.S.C. 1970, c. I-23. As such a "Public Officer" she must
be deemed to have been appointed to hold that office during
pleasure only pursuant to sub-section 22(1) of the Interpreta
tion Act, as no other tenure was expressed in her appointment.
11. During her period of employment at the Canadian Embassy
at Athens, the Applicant was covered by a pension plan regu
lated by the Locally Engaged Employees Pension Regulations,
a copy of which is now produced and shown to me and marked
Exhibit "D" to this my Affidavit.
12. During the period of her employment from 1954 to 1974
the Applicant was not required to make any contribution to the
cost of that Plan. During the period of her employment from
January 1, 1975 to July 7, 1978 the Applicant was required to
pay a contribution in part payment of the cost of her Pension
Plan. The remaining part was paid by the Government of
Canada.
13. At the time of the Applicant's termination of employment
on July 7, 1978, she was entitled only to a return of the amount
of her contributions with interest. The sum of 62,839 drachmas
(Greek) was paid to the Applicant on or about August 2, 1978
representing the amount of the contributions she had made to
the cost of her Pension Plan since January 1, 1975, plus interest
at the rate of 4% per annum. A copy of a letter dated July 31,
1978 sent to the Applicant advising her of the amount of her
pension contribution being returned to her is now produced and
shown to me and marked Exhibit "E" to this my Affidavit.
14. Under the Locally Engaged Employees Pension Regula
tions, the Deputy Minister, by virtue of paragraph 7(2) thereof,
has the unfettered discretion to grant, reduce, or withhold
payment to an employee to whom those Regulations apply.
15. This Affidavit is sworn in support of an Application made
by the Respondents pursuant to Rule 1100 of the General
Rules and Orders of the Federal Court of Canada to quash
these proceedings under paragraph 52(a) of the Federal Court
Act.
It will be observed that this affidavit is more
akin to a brief of argument than a statement of
facts. It is replete with argumentation and conclu
sions of mixed fact and law, including interpreta
tions of the effect of documents, none of which is
admissible or entitled to weight. As a whole, the
affidavit adds little if anything at all to the facts
recited in the applicant's memorandum save that it
exhibits copies of the Regulations and letters
referred to therein. It is particularly deficient in
not exhibiting the documents relating to the appli
cant's engagement and promotion.
The first point put forward in support of the
motion (though it was neither pressed nor aban
doned) was that under subsection 22(1) 2 of the
Interpretation Act, R.S.C. 1970, c. I-23, the appli
cant's position was one held during pleasure and
that under subsection 23 (1) of the same Act, the
applicant could be dismissed without a hearing by
the respondent who, it was said, was authorized to
exercise the power of subsection 23 (1) 3 because he
was the person who had the power to appoint the
applicant to her position.
It does not appear to me that there is sufficient
information in the material before the Court, at
this stage, to determine the nature of the position
held by the applicant, and it is not clear that that
position was one to which the respondent had
appointed her or had authority to appoint her.
Accordingly, in so far as the motion may be
founded on the submission that the respondent had
an unbridled discretion under subsection 23(1) of
the Interpretation Act to dismiss the applicant for
misconduct without informing her of the charge of
misconduct or affording her a hearing, I do not
think the facts that would support such a submis
sion have been established with sufficient clarity to
enable the Court to pass upon it at this stage of the
proceedings. I add, however, that even if in exer
cising the power conferred by subsection 23(1)
2 22. (1) Every public officer appointed before, on or after
the 1st day of September 1967, by or under the authority of an
enactment or otherwise, shall be deemed to have been appoint
ed to hold office during pleasure only, unless it is otherwise
expressed in the enactment or in his commission or
appointment.
3 23. (1) Words authorizing the appointment of a public
officer to hold office during pleasure include the power of
(a) terminating his appointment or removing or suspending
him,
(b) re-appointing or reinstating him, and
(c) appointing another in his stead or to act in his stead,
in the discretion of the authority in whom the power of
appointment is vested.
there is no requirement that the person concerned
be given a hearing, a point which is similar to one
discussed in the judgment of the majority of the
Supreme Court in Nicholson v. Haldimand-Nor-
folk Regional Board of Commissioners of Police
[1979] 1 S.C.R. 311 at page 322, the power does
not appear to me to be more than a power to
revoke the appointment and remove the incumbent
from the position by terminating the pleasure at
which the appointment is held. The subsection
does not include the word "dismiss" 4 or the ex
pression "dismiss for misconduct". As I read it,
while the subsection authorizes removal from
office, it does not authorize a dismissal for miscon
duct with the consequences which such a dismissal
entails in addition to the loss of the office itself.
Accordingly, I do not think the present motion
can succeed on the ground so put forward, at least
on the material presently before the Court.
The second point put forward, as I understood
it, was that as the deputy head of the Department
of Employment and Immigration, the respondent
had authority under the Regulations for locally-
engaged staffs abroad to dismiss the applicant,
that his power to do so was purely administrative
and that even if in exercising it fairly 5 he would
have been required to afford the applicant a hear
ing, the power was not one that was required by
law to be exercised on a judicial or quasi-judicial
basis. It would follow that review under section 28
of the Federal Court Act would not be open
though certiorari under section 18 might be.
The Regulations referred to are said to have
been made in 1956 under paragraph 7(c) of the
Financial Administration Act, R.S.C. 1952, c.
116, that is to say, some two years after the
applicant was first employed. Whether the provi
sions of these Regulations which authorize
employment and termination of employment by
the persons therein mentioned had the force of law
is not clear having regard to the provisions of the
Civil Service Act then in force. However, both
4 Compare the wording used in the Civil Service Act, R.S.C.
1952, c. 48, s. 52.
5 Compare Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police [1979] 1 S.C.R. 311 and
Martineau v. Matsqui Institution Disciplinary Board [1980] 1
S.C.R. 602.
parties treated them as governing the applicant's
employment. Assuming, as the parties have done,
that the applicant's employment was governed by
the Regulations it seems to me that any power the
deputy head may have had to dismiss the applicant
from the Public Service was that provided by the
Regulations and that this would be the extent of
his power to dismiss her even if, apart from such
Regulations, the applicant's position or office
would have fallen within the first class of employ
ment described by Lord Reid in Ridge v. Baldwin
[ 1964] A.C. 40 at page 65. 6
The Regulations provide in section 6.10 that,
subject to certain specified conditions, appoint
ments may be made by the deputy head of the
department concerned. They say nothing about the
tenure of such appointments. Part VII deals with
suspension. It provides:
6.27 CONDITIONS TO BE MET IN CASES OF SUSPENSION
(1) The Head of Post may suspend from the performance of
his duties for such period as he deems warranted, any
employee guilty of misconduct or negligence in the
performance of his duties, and shall report all such suspen
sions to the deputy head.
(2) An employee placed under suspension by the Head of Post
has the right of appeal to the deputy head.
(3) No salary shall be paid to an employee for any period
during which he is under suspension, unless the deputy
head is of opinion that the suspension was unjust or made
in error or that the punishment inflicted was too severe.
It will be observed that provision is made for an
appeal to the deputy head by an employee who has
been suspended by the Head of Post because of
misconduct or negligence in the performance of
6 The law regarding master and servant is not in doubt.
There cannot be specific performance of a contract of service,
and the master can terminate the contract with his servant at
any time and for any reason or for none. But if he does so in a
manner not warranted by the contract he must pay damages for
breach of contract. So the question in a pure case of master and
servant does not at all depend on whether the master has heard
the servant in his own defence: it depends on whether the facts
emerging at the trial prove breach of contract. But this kind of
case can resemble dismissal from an office where the body
employing the man is under some statutory or other restriction
as to the kind of contract which it can make with its servants,
or the grounds on which it can dismiss them. The present case
does not fall within this class because a chief constable is not
the servant of the watch committee or indeed of anyone else.
duties and that under subparagraph (3) an opinion
is to be formed by the deputy head as to whether
the suspension was just or made in error or the
punishment was too severe. That, to my mind,
suggests that on an appeal by the employee under
the provision a judicial, or perhaps a quasi-judi
cial, function is to be exercised by the deputy head.
Part IX is concerned with separations. It con
sists of a number of paragraphs, entitled respec
tively, "Resignation", "Release or Dismissal",
"Abandonment of Position" and "Retirement on
Account of Age". The paragraph entitled "Release
or Dismissal" reads:
6.48 RELEASE OR DISMISSAL
(1) The deputy head may terminate the employment of an
employee or a maintenance employee by reason of reduc
tion in strength, unsuitability, unsatisfactory service or
inefficiency, or dismiss him on account of misconduct.
(2) Any person who is dismissed for misconduct shall not be
paid any remuneration in respect of any period after the
day he ceased duty, except to the extent required by the
law of the country in which the post is situated.
It will be seen that this provision distinguishes,
both in its title and in its wording, between release
or termination and dismissal and that while there
are several grounds for release or termination the
only ground for dismissal is misconduct. Moreover,
the prohibition of subparagraph (2) applies only in
the case of dismissal for misconduct. There is no
provision for an appeal to the deputy head, as
there is in the case of a suspension, the authority
to dismiss being that of the deputy head himself.
Nor is there any definition of what constitutes
misconduct.
In my view, notwithstanding the lack of any
provision in the paragraph for procedure to dis
miss, this situation is a classic one for the implica
tion that the decision to dismiss must be made on a
judicial or a quasi-judicial basis. I say quasi-judi
cial only because "misconduct" is not defined and
no standards have been prescribed and that may
conceivably admit of some flexibility and the
application of policy considerations in the determi
nation. But in either case, the power to dismiss
arises only when there has been misconduct and,
as I see it, the determination of misconduct can be
made only on a judicial or possibly, for the reason
I have indicated, a quasi-judicial basis after
exploring the facts considered to amount to mis
conduct and hearing both sides on the issue. The
kind of hearing and the procedure to be followed
in conducting it are not matters which for present
purposes need be discussed.
The principle is an old one and, as it seems to
me, is nowhere better expressed than in the judg
ment of Byles J. in Cooper v. Wandsworth Board
of Works (1863) 14 C.B.N.S. 180. In that case,
the Board had authority in specified circumstances
to demolish a privately owned building and did so
without affording the owner a hearing. The statute
did not expressly provide for a hearing by the
Board before exercising the power. Byles J. said at
pages 194-195:
It seems to me that the board are wrong whether they acted
judicially or ministerially. I conceive they acted judicially,
because they had to determine the offence, and they had to
apportion the punishment as well as the remedy. That being so,
a long course of decisions, beginning with Dr. Bentley's case
(Rex v. The Chancellor, &c. of Cambridge, 1 Stra. 557; 2 Ld.
Ray. 1334; 8 Mod. 148; Fortescue, 202), and ending with some
very recent cases, establish, that, although there are no positive
words in a statute requiring that the party shall be heard, yet
the justice of the common law will supply the omission of the
Legislature. The judgment of Mr. Justice FORTESCUE, in Dr.
Bentley's case, is somewhat quaint, but it is very applicable,
and has been the law from that time to the present. He says,
"The objection for want of notice can never be got over. The
laws of God and man both give the party an opportunity to
make his defence, if he has any. I remember to have heard it
observed by a very learned man, upon such an occasion, that
even God himself did not pass sentence upon Adam before he
was called upon to make his defence. `Adam' (says God),
`where art thou? Hast thou not eaten of the tree whereof I
commanded thee that thou shouldest not eat?' And the same
question was put to Eve also." If, therefore, the board acted
judicially, although there are no words in the statute to that
effect, it is plain they acted wrongly.
In M.N.R. v. Coopers and Lybrand' Dickson J.
formulated four criteria for determining whether a
decision or order is one required by law to be made
on a judicial or quasi-judicial basis as follows:
(1) Is there anything in the language in which the function is
conferred or in the general context in which it is exercised
which suggests that a hearing is contemplated before a decision
is reached?
7 [1979] 1 S.C.R. 495 at page 504.
(2) Does the decision or order directly or indirectly affect the
rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many
individual cases rather than, for example, the obligation to
implement social and economic policy in a broad sense?
The list was not intended to be exhaustive.
Adverting to the four criteria in turn, with respect
to the first it seems to me that the existence of a
power to dismiss for misconduct, and particularly
one found in a general context where a power to
suspend for misconduct and for negligence in the
performance of duties is subject to procedural and
judicial safeguards, suggests that the exercise of
the greater power to dismiss for misconduct is also
to be subject to judicial safeguards. As to (2), it is
obvious that the decision to dismiss for misconduct
directly and seriously affects the employee both in
the loss of employment and in consequential
effects on rights incidental to his employment as
well as in his prospects for future employment. As
to (3), it seems to me, that the determination of
misconduct, which is a prerequisite of the exercise
of the power to dismiss, must in the nature of
things result from an assertion by someone of
misconduct on the part of the employee which
gives rise to an issue between that person or some
other person who takes up and pursues or reports
the assertion to the proper authority on the one
hand and the employee on the other. In that sense,
whenever the assertion of misconduct is not admit
ted, there is an adversary process and a lis. With
respect to (4), this is not a case at all of a power to
formulate or implement social or economic policy
in a broad sense. But within the limits of an
undefined but not hard to understand concept of
misconduct, it is a case of applying the concept to
an individual case for the purpose of determining
its existence or not. All four criteria in my opinion
point to the power of dismissal in question being
one that is required by law to be exercised on a
judicial or quasi-judicial basis.
Accordingly, I would dismiss the motion.
The following are the reasons for judgment
rendered in English by
URIE J.: I agree with the Chief Justice that the
motion to quash the within section 28 application
should be dismissed. I would prefer not to express
an opinion at this stage on the issue as to whether
or not the decision to dismiss the applicant for
misconduct is one which is required by law to be
made on a judicial or quasi-judicial basis. I think
that determination can, perhaps, best be decided
when there is more factual material before the
Court. I am content, therefore, to base my agree
ment on the disposition of the motion simply on
the ground that the material presently before the
Court is insufficient to permit the motion to
succeed.
* * *
KERR D.J.: I agree.
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.