T-2346-88
Gilles Jourdain (Plaintiff)
v.
The Queen in Right of Canada Represented by the
Treasury Board (Defendant)
INDEXED AS: JOURDAIN V. CANADA (TREASURY BOARD) (T.D.)
Trial Division, Teitelbaum J.—Montréal, June 20;
Ottawa, August 21, 1989.
Public Service — Jurisdiction — Application for declara
tion policy banning smoking in workplace outside Treasury
Board's jurisdiction — Health and safety "pith and sub
stance" of smoking policy — Treasury Board having authority
under both 1970 and 1985 Financial Administration Acts to
set policy of reasonable conditions of workplace, particularly
when involving public interest in health and safety — Also
within authority as employer unless issue inserted into collec
tive agreement — Smoking policy rule of conduct of internal
nature made pursuant to general power of control — Applica
tion dismissed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1.
Financial Administration Act, R.S.C. 1970, c. F-10, ss.
5(1), 7(1)(J),(g) (rep. by S.C. 1984, c. 39, s. 41),(i).
Financial Administration Act, R.S.C., 1985, c. F-11, ss.
7(I), 11(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Associated Bakery Stores Inc. c. Comité paritaire de
livraison de pain de la région de Montréal, [1976] C.A.
481 (Que).
AUTHORS CITED
Dussault, R. and Borgeat, L. Administrative Law: A
Treatise, vol. 1, 2nd ed. Toronto: Carswell, 1985.
COUNSEL:
Denis Sauvé and Pierre Deschamps for
plaintiff.
Raymond Piché and Pascale Lagacé for
defendant.
SOLICITORS:
Denis Sauvé, Montréal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
TEITELBAUM J.: The plaintiff, Gilles Jourdain,
hereinafter referred to as Jourdain, is a federal
civil servant who is a long-time smoker. He is
seeking, in the present proceedings, a declaration
that the defendant's, Her Majesty the Queen
represented by the Treasury Board, smoking policy
is illegal.
In the statement of claim, filed by Jourdain into
the Federal Court Registry, Jourdain asks in para
graphs 19(2) and (3) for a declaration that the
policy adopted by the Treasury Board, hereinafter
referred to as the Board, on August 12, 1987 was
ultra vires of the jurisdiction of the Board and that
the defendant be ordered to pay to Jourdain a sum
of $500 representing exemplary damages.
Soon after the commencement of the hearing,
counsel for Jourdain informed me that he no
longer is making a claim for exemplary damages,
the only issue remaining is the request by Jourdain
for a declaration that the smoking policy issued by
the Board on August 12, 1987 is invalid as being
outside the Board's powers. All other conclusions
in the statement of claim, except for costs, are
withdrawn by Jourdain.
Neither party presented witnesses. The facts,
agreed to, by the plaintiff and the defendant are
that:
a) Jourdain is a member of the federal civil service since
September 1, 1985;
b) Jourdain is a smoker;
c) The Board adopted a smoking policy on August 12, 1987
(806374) and a revised policy on October 4, 1988.
Jourdain alleges, in his statement of claim, that
the Board's policy of August 12, 1987 (806374)
seeks to prohibit smoking in the workplace as of
January 1, 1989, that this August 12, 1987 policy
was replaced on October 4, 1988 by a revised
version and that both policies were adopted pursu-
ant to section 7 of the Financial Administration
Act, R.S.C. 1970, c. F-10, (Act). Jourdain further
alleges that when the Board adopted policy no.
806374 on August 12, 1987, it had no authority to
do so as there was nothing to be found in section 7
of the Act authorizing the adoption of such a
smoking policy.
The defendant, in its statement of defence,
denies the above allegations of Jourdain. The
defendant alleges that the Board as employer has
the power, right and authority to adopt the smok
ing policy in issue, that is, the Board, as employer
has the right, power and authority to prohibit
smoking in the workplace during the normal
course of work and to impose, if it so desires,
sanctions when that policy is contravened.
Plaintiff's Submission
On August 12, 1987, the Treasury Board adopt
ed a Public Service Smoking Policy whereby it was
to be forbidden as of January 1, 1989, to smoke
tobacco products in the workplace. Plaintiff sub
mits that this policy was adopted by the Board
pursuant to section 7 of the Financial Administra
tion Act, R.S.C. 1970, c. F-10 and more particu
larly paragraph 7(1)(g):
7. (1) Subject to the provisions of any enactment respecting
the powers and functions of a separate employer but notwith
standing any other provision contained in any enactment, the
Treasury Board may, in the exercise of its responsibilities in
relation to personnel management including its responsibilities
in relation to employer and employee relations in the public
service, and without limiting the generality of sections 5 and 6,
(g) establish and provide for the application of standards
governing physical working conditions of, and for the health
and safety of, persons employed in the public service;
In the August 12, 1987 policy statement it states
as the policy:
Smoking of tobacco or other products will be banned in all
Public Service workplaces by January 1, 1989.
In the said document, found under Tab 1 of the
book filed herein "Lois Règlements et Politiques",
it states under Authority, in section 1.4:
The Public Service Smoking Policy is authorized pursuant to
Section 7 of the Financial Administration Act, and has been
approved by the Treasury Board under TB Minute No. 806374
of August 12, 1987.
On October 4, 1988 a revised policy was adopt
ed whereby it was intended to promote a safe and
healthy work environment free, to the extent possi
ble, of tobacco smoke. Under Policy Objective, it
states:
The intent of this policy is to promote a safe and healthy work
environment for employees in the Public Service, free, to the
extent possible, of tobacco smoke.
Plaintiff submits that it would appear that the
revised policy adopted by the Treasury Board was
pursuant to section 7 of the Financial Administra
tion Act, R.S.C., 1985, c. F-11. This section of the
1985 R.S.C. Act is not the same as section 7 of the
Financial Administration Act R.S.C. 1970, c.
F-10:
7. (1) The Treasury Board may act for the Queen's Privy
Council for Canada on all matters relating to
(a) general administrative policy in the public service of
Canada;
(b) the organization of the public service or any portion
thereof, and the determination and control of establishments
therein;
(c) financial management, including estimates, expenditures,
financial commitments, accounts, fees or charges for the
provision of services or the use of facilities, rentals, licences,
leases, revenues from the disposition of property, and proce
dures by which departments manage, record and account for
revenues received or receivable from any source whatever;
(d) the review of annual and longer term expenditure plans
and programs of the various departments of Government,
and the determination of priorities with respect thereto;
(e) personnel management in the public service of Canada,
including the determination of the terms and conditions of
employment of persons employed therein; and
(/) such other matters as may be referred to it by the
Governor in Council.
Plaintiff submits that both policies adopted by
the Treasury Board are illegal. Plaintiff submits
that the Treasury Board did not have, pursuant to
section 7 of the Financial Administration Act,
R.S.C. 1970, c. F-10, the authority to adopt the
initial policy as the only subsection upon which the
Treasury Board could have derived authority for
this policy was paragraph 7(1)(g) which was
repealed in 1986 [S.C. 1984, c. 39, s. 41]. Plaintiff
states that as regards the revised policy, he
believes that it was adopted pursuant to the au-
thority given to the Board by subsection 7(1) of
the Financial Administration Act, R.S.C., 1985, c.
F-11 which section reproduces subsection 5(1) of
the R.S.C. 1970 Act which states: (see above
subsection 7(1) of R.S.C., 1985 Act).
The 1985 Revised Statutes of Canada only
became effective on December 12, 1988 indicating,
according to plaintiff, that on October 4, 1988
when the revised policy was made, the Treasury
Board had no authority to make such a revised
policy.
Plaintiff submits that the authority to adopt the
August 12, 1987 policy had to come from para
graph 7(1)(g) of the 1970 R.S.C. Financial
Administration Act dealing with health and safety.
Plaintiff believes it could not have come from the
"general" clauses found in this section. Plaintiff,
furthermore, states that in the Treasury Board's
deliberations, it seems to expressly recognize that
the Board had paragraph 7(1)(g) in mind when
adopting the policy of August 12, 1987.
Nothing was shown to me in the policy paper to
indicate this. There is reference made in section
1.7 of the 1987 policy paper to "local safety and
health committee", in section 2.1.1 "department's
safety and health committees", section 2.1.4 "the
local safety and health committee or representa
tive" but nothing that would indicate that the
policy is being made for safety and health reasons.
It may be possible to make such an assumption
but, in this case, no evidence was submitted that
smoking is a health hazard.
Plaintiff further submits that Parliament abol
ished paragraph 7(1)(g) in the context of a reform
of the Canada Labour Code [R.S.C. 1970, c. L-1].
Plaintiff submits that in taking away the power of
health and safety from the Treasury Board, Parlia
ment meant to place it in the Labour Code as, I
assume, to become an issue for bargaining. Now
that the health and safety clause is part of the
Canada Labour Code, plaintiff submits that the
Treasury Board cannot deal with the subject-
matter.
Plaintiff submits that the Treasury Board
cannot now say it has a general power to adopt a
smoking policy. Parliament had given the Board a
very specific power to deal with health and safety
issues (paragraph 7(1)(g)) and then, in 1986, took
it away. Since the Treasury Board lost its author
ity to deal with safety and health issues, it cannot
now attempt to deal with a health and safety issue
by stating it has ancillary powers and thus make a
policy specifically dealing with a health and safety
issue.
Defendant's Submission
Defendant states that plaintiff assumes that the
smoking policy has to do with health and safety.
Defendant denies this and states the only reason
for the policy is nothing more or less than to stop
smoking in the workplace. Defendant cites the case
of Associated Bakery Stores Inc. c. Comité pari-
taire de livraison de pain de la région de Mont-
réal, [1976] C.A. 481, (Que.) at page 484 for the
proposition that one has to look to the pith and
substance of the policy to find its object:
[TRANSLATION] I fully agree with the appellant's proposition
that one must look to the essence (pith and substance) of a
statute in order to determine its object.
Defendant submits that the smoking policy is
not just a question of health and safety but of
many factors, including financial. As counsel sub
mits, it could be to cut costs of painting walls
because of the smoke, of replacing carpets because
of holes in the carpets caused by burning cigarettes
or it may have to do with productivity.
Defendant further submits that even if the
policy deals only with health and safety, the Trea
sury Board would have the authority to make such
a policy because it is the Treasury Board who is
the employer and is responsible to administer all
ministries of the Government. The Board, it is
submitted, pursuant to the present (new) subsec
tion 7(1) or old subsection 5(1) has all the inher
ent powers of an employer. Defendant states sub
section 7(1) (new) gives the Treasury Board all the
powers of an employer. Subsection 11(2) (new)
enumerates that power:
11. ...
(2) Subject to the provisions of any enactment respecting the
powers and functions of a separate employer but notwithstand
ing any other provision contained in any enactment, the Trea
sury Board may, in the exercise of its responsibilities in relation
to personnel management including its responsibilities in rela
tion to employer and employee relations in the public service,
and without limiting the generality of sections 7 to 10,
(a) determine the requirements of the public service with
respect to human resources and provide for the allocation
and effective utilization of human resources within the public
service;
(b) determine requirements for the training and develop
ment of personnel in the public service and fix the terms on
which such training and development may be carried out;
(c) provide for the classification of positions and employees
in the public service;
(d) determine and regulate the pay to which persons
employed in the public service are entitled for services ren
dered, the hours of work and leave of those persons and any
matters related thereto;
(e) provide for the awards that may be made to persons
employed in the public service for outstanding performance
of their duties, for other meritorious achievement in relation
to those duties and for inventions or practical suggestions for
improvements;
(/) establish standards of discipline in the public service and
prescribe the financial and other penalties, including suspen
sion 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;
(g) establish and provide for the application of standards
governing physical working conditions of, and for the health
and safety of, persons employed in the public service;
(h) determine and regulate the payments that may be made
to persons employed in the public service by way of reim
bursement for travel or other expenses and by way of allow
ances in respect of expenses and conditions arising out of
their employment; and
(i) provide for such other matters, including terms and
conditions of employment not otherwise specifically provided
for in this subsection, as the Treasury Board considers neces
sary for effective personnel management in the public
service.
It must be recalled that the "new" Financial
Administration Act, R.S.C., 1985, c. F-11 was not
in effect when the revised policy was made by the
Board. It is not enough, even by implication, to say
that even if the new version of the Act had not
come into force, when the revised policy was made
by the Board, it would be a waste not to adopt the
revised policy as the new version of the Act is now
in effect. I am satisfied that the Board, on October
4, 1988, could not rely, for authority, on an Act,
the Financial Administration Act, R.S.C., 1985, c.
F-11, that had not yet come into effect.
Defendant further submits that the Treasury
Board as an employer has the right to ban smoking
and set up sanctions if the ban is not followed by
the employees.
Conclusion
I have grave doubts that the smoking policy is
not about health and safety. The Treasury Board
and before the Treasury Board, ministers in charge
of their departments never, before August 1987
issued a policy on the issue of smoking in the
workplace. I am satisfied that this was not done
because, going back a number of years, smoking
was not considered as necessarily being a hazard
ous habit. Although no evidence was put before me
as to the hazards of smoking or of inhaling second
hand smoke, I believe I can take judicial notice
that there exists some evidence of the possible
hazardous effects of smoking and of inhaling
tobacco smoke. Notwithstanding defendant's sub
mission that the policy has little or nothing to do
with health and safety, I am satisfied that the
"pith and substance" of the policy is the health
and safety of federal public servants and of persons
dealing with public servants.
As an employer, I am satisfied that the Treasury
Board has the authority, both under the old and
new Act to set a policy of reasonable conditions of
the workplace particularly when it involves the
public interest in health and safety. An employer
alone has the authority to decide on the reasonable
conditions of the workplace unless the issue of
these reasonable conditions becomes a matter
inserted into an agreement between the representa
tives of the public service and the Treasury Board.
It would appear that the Board has the power to
make the policy pursuant to section 7 of the old
Act, particularly paragraphs 7(1)(f) and 7(1)(i).
In conclusion, I am satisfied that, as an employ
er, the Treasury Board has the authority to estab
lish, in the interest of its work force, policies
involving the issue of smoking. It is a rule of
conduct of an internal nature made pursuant to a
general power of control (Dussault R. and Borgeat
L. Administrative Law:• A Treatise, vol. 1, 2nd ed.,
Toronto: Carswell, 1985).
The policy adopted by the Treasury Board on
August 12, 1987 and revised on October 4, 1988 is
valid.
Costs in favour of defendant.
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.