Heustis v. N.B. Elect. Power Commiss., [1979] 2 SCR 768

SUPREME COURT OF CANADA

Heustis v. N.B. Elect. Power Commiss., [1979] 2 S.C.R. 768

Date: 1979-05-22

Maynard P. Heustis Appellant; and

The New Brunswick Electric Power Commission Respondent.

1978: October 17, 18; 1979: May 22.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Labour relations — Adjudication — Public service labour relations — Collective agreement — Right to discharge for just and sufficient cause — Adjudication of grievances by adjudicator — Jurisdiction of adjudicator — Power to vary penalties — Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, ss. 92, 101.

Appellant H was employed as a lineman by the Commission. In February 1976 the members of his Union Local were involved in an illegal walkout and were picketing Commission property. On a couple of occasions B, also a Commission employee but a member of a different Local of the I.B.E.W. challenged the picket line. He drove through in a car. It was alleged that he struck one of the picketers and that, in a second incident, his car hit one of the picketers. Subsequently B and six other employees were ambushed by fifteen to twenty men. One of these men, McD pointed B out as the one to get. B was "jumped" from behind, was struck on the back, knocked to the ground and there kicked in the nose by H, sustaining a triple fracture of the nose. B wrestled H to the ground ending the altercation. On March 5 H and McD were suspended by the Commis­sion. McD grieved his suspension. On March 12 both received letters of discharge. Both grieved their discharges. The grievances were referred to an adjudicator under s. 92 of the Public Service Labour Relations Act. The adjudicator found that the employees deserved dis­cipline but there was an element of ambiguity in his decision. He concluded that, notwithstanding the aggravating features of the instant case, the incident was a momentary flare-up without harm to the reputation, authority or property of the Commission. The adjudica­tor ruled however that, despite that conclusion and the appellant's excellent disciplinary and employment record, he had no authority to make any substitution of the discipline meted out by the employer.

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On an application by the appellant for orders of certiorari and mandamus, Stratton J. quashed the adjudicator's decision, holding that the adjudicator had found just and sufficient cause to discipline, not to discharge, and that, as the adjudicator had the remedial power to vary the mode of discipline, he had failed to exercise a jurisdiction which was his. The Appeal Divi­sion reversed and held, following Port Arthur Ship-building Co. v. Arthurs, [1969] S.C.R. 85, and Re Treasury Board (1973), 7 N.B.R. (2d) 354, that the adjudicator had found just cause for discharging both grievors and that having so found "could not substitute any of the other modes" of discipline for that chosen by management.

Held: The appeal should be allowed.

The Appeal Division wrongly interpretated the deci­sion of the adjudicator. The language of the decision, for example the sentence "Had I the authority to do so I would have substituted one month's suspension without pay", leads to the conclusion that the adjudication found just cause for discipline only. Impliedly he found an absence of just and sufficient cause for discharge.

Port Arthur Shipbuilding should be distinguished. In that case, first, the disciplinary powers were found solely in the management rights clause of the agreement, unrestricted by any other article, and, second, there was nothing in the relevant Act or in the arbitration provi­sions subjecting management's authority to discipline to full review by an arbitration board. In the present case a specific clause in the agreement recognised that the Commission could only discipline for just and sufficient cause. The question here was not, as in Port Arthur Shipbuilding "did management go beyond its rights?", but rather, "did the employer breach Article V(d) of the collective agreement?" i.e. by discharging without "just and sufficient cause".

Further, s. 92(1)(b) of the Public Service Labour Relations Act expressly provides that management's authority to discipline will be subject to full review by an adjudicator and the section appears to recognize "disciplinary action" as a continuum from "financial penalty" through "suspension to "discharge". The whole purpose of the grievance procedure under the Act was to secure prompt, final and binding settlement of disputes. The present appellant misconducted himself; the adjudicator considered that he should be disciplined but

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only to the extent of a suspension; if the exercise of such adjudicative power does not permit of remedial action then the decision of the adjudicator becomes largely a hollow pronouncement. There being nothing in either the agreement or the Act to preclude the adjudicator's exercise of remedial authority, an adjudicator under the Public Service Labour Relations Act of New Brunswick has the power to substitute some lesser penalty for discharge where he has found just and sufficient cause for some disciplinary action but not for discharge.

Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85 distinguished; Re Treasury Board (1973), 7 N.B.R. (2d) 354; Re Zolondek (1976), 15 N.B.R. (2d) 665; Re Polymer Corporation and Oil, Chemical, and Atomic Workers International Union, Local 16-14 (1959), 10 L.A.C. 51; (1961), 26 D.L.R. (2d) 609 (Ont. H.C.); (1961), 28 D.L.R. (2d) 81 (Ont. C.A.); [1962] S.C.R. 338 (Sub nom Imbleau v. Laskin); Newfoundland Association of Public Employees v. Attorney Gen­eral for Newfoundland, [1978] 1 S.C.R. 524 referred to.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], allow­ing an appeal from a judgment of Stratton J.[2] quashing the decision of an adjudicator under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. Appeal allowed.

Roy W. Dixon, for the appellant.

E. Neil McKelvey, Q. C., and Robert G. Vincent, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The appellant is a lineman employed by the New Brunswick Electric Power Commission and member of Local 1733 of the International Brotherhood of Electrical Workers. In February, 1976, the members of Local 1733 were involved in an illegal walkout and were pick­eting the main entrance to a Commission property known as the Marysville Service Centre and

[Page 771]

Design Centre.

On a couple of occasions one Bjerkelund, also a Power Commission employee, but a member of a different Local of the I.B.E.W., challenged the picket line. He drove through in a car. It was alleged that he struck out at the picketers and that, in a second incident, his car hit one of the picketers. In any event, on February 25, 1976, Bjerkelund was apprehensive about going out the main gate, and left the property by a back entrance. In the woods behind the Centre, Bjer­kelund and six other employees were ambushed by fifteen to twenty men. One of these men, one McDonald, pointed out Bjerkelund as the one to get. Bjerkelund, surrounded by the linemen, was "jumped" from behind. He was struck three blows on the back and knocked to the ground. Lying there, he was kicked in the nose by the appellant, and suffered a triple fracture of the nose. Bjer­kelund caught the appellant's leg and wrestled him to the ground. That brought the altercation to an end.

On March 5, 1976, the appellant and McDonald were suspended from duty by the Power Commis­sion. McDonald grieved his suspension. Both he and the appellant received letters of discharge on March 12, 1976. Both grieved their discharges. They claimed that their employment had been terminated without just cause. They asked to be reinstated with no loss of pay or benefits. The employer took the position that the incident had been serious and that the disciplinary action taken was proper.

Donald McLean was appointed adjudicator by the Chairman of the Public Service Labour Rela­tions Board pursuant to the provisions of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, and in conformity with the collective agreement between the Power Commission and Local 1733 of the Union.

The following Articles of the agreement are of importance:

Article V

Unfair Practices

(d) Discipline, suspension, demotion or discharge of any employee shall be for just and sufficient

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cause.

Article XVII Rights of Employer

The Commission has and shall retain the exclusive right and power to manage its business and direct its working forces, including, but without restricting the generality of the foregoing, the right and power:

(c) To discipline, suspend, demote or discharge any employee for just and sufficient cause.

Nothing above shall be construed to override the express provisions of other articles of the Agreement or to restrict in any way the right to grieve.

The question for the adjudicator was whether the employer had just and sufficient cause to discharge the appellant. In deciding this question the adjudicator had three tasks before him. First, did the employee engage in the conduct alleged? Second, was the conduct deserving of disciplinary action on the part of the employer? Third, if so, was the offence serious enough to warrant discharge?

There is an element of ambiguity in the decision of the adjudicator. After finding that the employer had met the evidential burden of proving, on a balance of probabilities, that the appellant was involved in breaking Bjerkelund's nose, and McDonald in shouting and pointing out the victim, the adjudicator said: " ... the question now turns around whether this was just and sufficient cause to discharge the Grievor." After referring to the "management rights" article of the collective agreement, which I have already noted, he added: "I think that the question of just and sufficient cause relates to a finding of whether such a disci­plinary action was warranted."

The adjudicator then reviewed a number of cases in which were set forth the principles to be applied in determining whether acts of the nature of those of the appellant could be just and sufficient

[Page 773]

cause for discharge. He cited labour arbitra­tion cases in which it had been held that involvement in a physical fight was, of itself, sufficient cause for discharge and other, more recent, cases in which it had been decided that the momentary flare-up of a work dispute into physical violence was not of itself just cause for discharge. He concluded that in the instant case, notwithstanding the aggravating features, the incident was a momentary flare-up without harm to the reputa­tion, authority, or property of the Power Commis­sion. The appellant's prior disciplinary record was clean, and he was an excellent employee.

The adjudicator said, however, that he could find no authority for making any substitution of the discipline meted out by the employer. He felt bound by the decision of this Court in Port Arthur Shipbuilding Co. v. Arthurs[3], and by Re Treasury Board[4]. He continued:

Counsel for the Grievor suggested that my task was to determine if there was just and sufficient cause for the discharge, and, if I found the discharge to be excessive, then I could uphold the grievances. However, I do not feel that I can make such a distinction when consider­ation is given the management rights still reserved to the Employer by Article XVII of the Agreement. There being just and sufficient cause to discipline the Grievor, I cannot alter the mode of discipline chosen by the Employer.

and concluded:

For all these reasons I would reject the grievance even though I consider that the discharge penalty was too harsh and severe in the circumstances. Had I the au­thority to do so, I would have substituted one month's suspension without pay.

The appellant then applied for orders of certio­rari and mandamus in the Queen's Bench Division of the Supreme Court of New Brunswick. Mr. Justice Stratton was of opinion that the findings of the adjudicator (i) that there was just and suffi­cient cause to discipline Heustis and McDonald, and (ii) that the discharge penalty was too harsh and severe in the circumstances, were conclusions upon matters arising in the determination of the

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merits of the grievances and protected from review by the privative clauses of s. 101 of the Public Service Labour Relations Act. Section 101 reads:

101 (1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be questioned or reviewed in any court.

(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board, the Arbitration Tribunal or an adjudicator in any of its or his proceedings.

Mr. Justice Stratton said:

It is to be noted that the Adjudicator found just and sufficient cause to discipline, not to discharge as counsel seemed to assume in their argument before me. Having so found I am of the opinion the Adjudicator had the remedial power to vary the mode of discipline and in declining to do so, he failed to exercise a jurisdiction which was his.

An appeal from the order of Stratton J. was taken to the Appeal Division of the Supreme Court of New Brunswick, and the order was set aside. Mr. Justice Ryan delivered the judgment of the Court. In his opinion, the question which the adjudicator had to decide was whether the employ­er had "just and sufficient cause" to dismiss the appellant and McDonald. In a later paragraph in the judgment, however, he said: "In the instant case, I interpret the adjudicator's decision as tan­tamount to a finding that there was just cause for discharging both grievors ..." With respect, I find it impossible to interpret the decision of the adjudicator in that manner. If that be the correct interpretation, then much of the language in the decision of the arbitrator is not only unnecessary but inapposite. For example, the sentence, "Had I the authority to do so I would have substituted one month's suspension without pay." I think it is correct to conclude that the adjudicator made a finding of just cause for discipline only. Impliedly, he answered "No" to the question referred to him,

[Page 775]

namely, whether there was just and sufficient cause for discharge.

I have no doubt that the Court of Appeal for New Brunswick erred in finding that the adjudica­tor found just cause to discharge the appellant. That, however, does not conclude the matter. There remains the major question of the remedial authority of an adjudicator under the Public Service Labour Relations Act, and whether the adjudicator here was correct in law in finding that the case falls within the decision reached in Port Arthur Shipbuilding Co. v. Arthurs, supra.

In the view of Ryan J.A., art. XVII of the agreement provided for distinct "modes of disci­pline", i.e. to discipline, or to suspend, or to demote, or to discharge, in the case of an employee guilty of misconduct. Once the employer chose one of these "modes of discipline", an arbitrator could not substitute any of the other modes for the one chosen by management, but was restricted to determining whether there existed "just and suffi­cient cause" for the exercise of disciplinary powers. Thus, this case was held to fall within the decision in Port Arthur Shipbuilding.

Port Arthur Shipbuilding involved three employees who stayed away from their employment with the Port Arthur Shipbuilding Company in order to take temporary and seasonal employment with another employer. There were mitigat­ing circumstances, but all three were in breach of an article of the collective agreement barring leaves of absence to work for another employer. All three were discharged. The arbitration board found the facts as alleged by the employer, found just cause for discipline but not for discharge, and substituted suspensions for the discharge&

The relevant arbitration provision in the Ontario Labour Relations Act was found in s. 34(1) quoted at p. 91 of this Court's decision.

[Page 776]

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any ques­tion as to whether a matter is arbitrable.

The management rights clause of the collective agreement read as follows:

3.01 The Union recognizes the Management's authority to manage the affairs of the Company, to direct its working forces, including the right to hire, transfer, promote, demote, suspend and discharge for proper cause any Employee and to increase, or decrease the working force of the Company, provided that the Com­pany shall not exercise these rights in a manner incon­sistent with the terms of this Agreement.

Mr. Justice Judson, speaking for the Court, began with the management rights clause in these terms, at pp. 88-89:

The proposition of the appellant company is that the board had no power to substitute suspension for dismis­sal I deliberately avoid the term "jurisdiction". The company, under art. III dealing with management rights, has the right to discharge for proper cause. I draw no distinction between "proper" cause and "just" cause. This is subject only to s. 3.03, which gives the employee a right to have his case dealt with according to grievance procedure. The only limitation on the power of management is that it shall not be exercised "in a manner inconsistent with the terms of this agreement". In this case there cannot be any suggestion that there was anything in the agreement that the company breached.

The sole issue in this case was whether the three employees left their jobs to work for someone else and whether this fact was a proper cause for discipline. Once the board had found that there were facts justifying discipline, the particular form chosen was not subject to review on arbitration.

The true ratio of the decision is to be found, I believe, in the following paragraph, pp. 89-90:

A collective agreement is binding on employer and employees. These were not trivial breaches and the board had no power to substitute its own judgment for

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that of management in the circumstances of this case. If this kind of review is to be given to a board under s. 3.03, it should be given in express terms, namely, that the management's authority to demote, suspend or discharge will be subject to full review by the board of arbitration. Management would then understand what its position would be. But as the agreement is presently drawn, the board's power is limited to a determination whether management went beyond its authority in this case. The question before them was, could an honest management, looking at the group of employees as a whole and at the interests of the company, have reached the conclusion that they did? In other words, did man­agement go beyond its rights? There is only one answer to this question and the answer is "No". It was the board that exceeded its authority in reviewing the deci­sion of management by purporting to exercise a full appellate function. [emphasis added]

At pages 95-6, Judson J. concluded his reasons by returning to the limitations upon the arbitration board's powers under the agreement:

An arbitration board of the type under consideration has no inherent powers of review similar to those of the Courts. Its only powers are those conferred upon it by the collective agreement and these are usually defined in some detail. It has no inherent powers to amend, modify or ignore the collective agreement. But this is exactly what this board did in this case and it was clearly in error in so doing, and its award should be quashed.

In my view, there were two factors in Port Arthur Shipbuilding that led the Court to the conclusions reached in that case. First, the discipli­nary powers of the employer were found solely in the management rights clause of the agreement, unrestricted by any other article of the agreement. Second, there was nothing either in s. 34(1) of the Act, or in the agreement's arbitration provisions, subjecting to full review by an arbitration board management's authority to discipline. Neither of these factors exists in the case at bar.

The collective agreement here contains, quite apart from the usual management rights clause, a specific clause with respect to disciplinary action by the employer:

[Page 778]

V(d) Discipline, suspension, demotion or discharge of any employee shall be for just and sufficient cause.

V(e) When an employee's grievance relates to discipli­nary action resulting in discharge, suspension, or finan­cial penalty it may be referred directly to the second level within five (5) days after the alleged grievance has arisen.

Further, one finds as the concluding paragraph of the management rights clause (art. XVII, quoted earlier) a proviso similar to that in the Port Arthur Shipbuilding agreement:

Nothing above shall be construed to override the express provisions of other articles of the Agreement or to restrict in any way the right to grieve.

This means that the other provisions of the collec­tive agreement, such as art. V(d), have precedence over the management rights clause. The appellant lodged his grievance under art. V of the agreement and it is according to art. V, rather than art. XVII, that the obligations of the employer ought to be determined insofar as disciplinary measures are concerned.

Article V is more than a recognition by the union that the employer is to enjoy certain rights; it is the assumption by the Power Commission of the obligation not to discharge an employee except for just and sufficient cause. The word "sufficient" in art. V(d) should not be overlooked. It mandates that the seriousness of the disciplinary measure must relate to the importance of the offence, or to put it in other words, that the offence has to be sufficient to justify the penalty. The Power Com­mission has assumed the obligation not to impose a disciplinary measure which would not be related to the seriousness of the offence.

Indeed, I find it difficult to conceive how one can determine "just and sufficient cause" without relating it not only to disciplinary action in gener­al, but to the gravity of the punishment imposed in particular. If the adjudicator is correct in his appreciation of the authorities, his task was merely to determine whether disciplinary action, of some nature, was warranted; if so, the mode and gravity

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of the punishment became a matter solely within the discretion of the employer. The offending conduct might be of the most trivial nature warrant­ing, say, a reprimand, yet the employer would be free to impose the ultimate in punishment and discharged the employee. On this view, it becomes an "all or nothing" affair. I am unable to agree that the authorities lead to such fatuity.

Here the question is not, as in Port Arthur Shipbuilding, "did management go beyond its rights?", but rather, "did the employer breach art. V(d) of the collective agreement?" The employees are not grieving, as in Port Arthur Shipbuilding, under the management rights clause, but under an article whereby the employer has expressly assumed the obligation not to discipline except for "just and sufficient cause." One cannot suggest, as one might in the Port Arthur Shipbuilding situa­tion, that the management rights clause here serves to shield the disciplinary action of the employer from broad arbitral review.

This conclusion is strongly and independently supported by the adjudication provisions of the collective agreement in question. Article XXIII provides:

The provisions of the Public Service Labour Relations Act and Regulations, including Article 92 of the Act governing the adjudication of grievances shall apply to grievances lodged under the terms of this agreement.

Section 92(1) of the Public Service Labour Rela­tions Act provides:

Where an employee has presented a grievance up to and including the final level of 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, subject to subsection (2), refer the griev­ance to adjudication.

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Two points are worthy of note with respect to s. 92(1). First, unlike the arbitration provisions in Port Arthur Shipbuilding, the adjudication proce­dure of the Act is not restricted only to "the interpretation, application, administration or alleged violation of the agreement", but explicitly provides in clause (b) for adjudication with respect to "disciplinary action resulting in discharge, suspension or a financial penalty." The Legislature has expressly provided in the statute regulating public sector labour relations that management's authority to discharge, suspend, or impose a finan­cial penalty will be subject to full review by the adjudicator. To what end is this provision inserted in the statute if not to give some additional power to the adjudicator beyond the words of clause (a), the words under consideration in Port Arthur Shipbuilding?

Second, s. 92(1) (b) would appear expressly to recognize "disciplinary action" as a continuum from "financial penalty" through "suspension" to "discharge." The language of art. V(e) of the collective agreement accords with this continuous view of disciplinary action, adopting the language of the statute in relation to grievances and the serious forms of discipline envisaged by art. V(d). Any thought that the management rights clause affords the employer an unlimited discretion as to the mode of discipline would appear to run counter to the language of art. V and, more important, the statutory provision of s. 92(1).

In an earlier case, Re Zolondek[5], Chief Justice Hughes of the Appeal Division of the New Brunswick Supreme Court had occasion to consider whether, in the absence of special powers con­ferred upon him by the collective agreement, the adjudicator had power to substitute a two-month suspension without pay for the indefinite suspen­sion imposed by the employer. The Chief Justice concluded that since suspension of an employee was made arbitrable by s. 92(1)(b) of the Public Service Labour Relations Act, supra, the duration

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of a suspension must also be arbitrable. To hold otherwise, the Chief Justice said, at p. 677:

... would result in placing the duration of a suspension for conduct admittedly meriting disciplinary action solely in the discretion of the Employer without recourse of any kind. In my opinion it is implicit in s. 92 that an Adjudicator has remedial powers and that in cases of suspension those powers include the power to vary the duration of a suspension imposed as a penalty.

It is true that in Zolondek the issue was merely that of substituting a suspension of definite dura­tion for one of indeterminate duration, whereas in the case at bar suspension was substituted for discharge. Nonetheless, the decision represents the recognition, and exercise, of a remedial power above and beyond that expressly spelled out in the language of the collective agreement. In the case at bar, the Court of Appeal distinguished Zolon­dek on the ground that "no change was effected in the mode of discipline chosen by the employer."

There is a very good policy reason for judicial restraint in fettering adjudicators in the exercise of remedial powers. The whole purpose in establish­ing a system of grievance adjudication under the Act is to secure prompt, final, and binding settlement of disputes arising out of interpretation or application of the collective agreement, or discipli­nary action taken by the employer, all to the end that industrial peace may be maintained.

Take the present case. The appellant miscon­ducted himself. The external tribunal to which the matter was referred considered that he should be disciplined, but only to the extent of a suspension. If the exercise of adjudicative authority does not permit remedial action by making the punishment fit the offence, then the decision of the adjudicator becomes largely a hollow pronouncement, signify­ing nothing. Either the grievance is allowed, in which case the appellant goes unpunished, a result which would seem wrong in the circumstances; or the appellant is dicharged [sic] from employment, a result which, in the opinion of the adjudicator, for the mitigating reasons given by him, would result in injustice to the employee. In either case, the purpose of the adjudicative process in the administration

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of the collective agreement would be defeated. Relations between employer and union would become further exacerbated. If the process is to make any sense, a right to modify the severity of the discipline by imposing a lesser penalty must surely inhere in the exercise of adjudicative au­thority: see Re Polymer Corporation and Oil, Chemical, and Atomic Workers International Union, Local 16-14[6].

In a similar vein, in the recent case of New­foundland Association of Public Employees v. Attorney General for Newfoundland[7], Chief Jus­tice Laskin, with whom Ritchie J. concurred, had occasion to discuss the remedial powers of arbitrators. Two passages would appear particularly apposite in this case, at pp. 529 and 530:

Counsel for the respondent at first took the position that a board of arbitration, and the particular board here, could not interfere with the penalty of discharge once cause for some discipline existed, but he receded from it on realizing that this could work to the serious disadvantage of an employer if a board was required to say either yes or no to discharge and, if it said no, the discharged employees would have to be reinstated with consequent entitlement to lost pay (perhaps for a long period) and any fault on their part would have gone unpunished. Equally, he conceded that it could not be that an employer, having some basis for disciplining an employee for a minor infraction, say, lateness in report­ing for work on one or two occasions, could impose discharge and defend the penalty against interference by an arbitration board empowered to adjudicate on wheth­er the dismissal was for just cause.

Cause and penalty are intertwined especially in discharge cases. I hold the view that arbitration boards, as domestic tribunals of the parties, should be given lati­tude, no less than that given by Court decisions to statutory government tribunals, to exercise their powers so as best to effectuate their raison d'être. For a Court to say that a penalty substituted by a board is beyond its powers is no different from interfering with a finding that either upholds or sets aside an assigned penalty without more.

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As I have sought to demonstrate, the collective agreement in this case and, more importantly, the applicable statutory provisions respecting adjudi­cation, can be readily distinguished from those operating in the Port Arthur Shipbuilding case. There being nothing in either the agreement, or the Act, which expressly precludes the adjudica­tor's exercise of remedial authority, I am of the opinion that an adjudicator under the Public Service Labour Relations Act of New Brunswick has the power to substitute some lesser penalty for discharge where he had found just and sufficient cause for some disciplinary action, but not for discharge.

I would allow the appeal, set aside the judgment of the Appeal Division of the Supreme Court of New Brunswick, and restore the order of Stratton J. quashing the decision of the adjudicator and directing the adjudicator to proceed with the adjudication according to law. The appellant is entitled to costs in this Court and in the Appeal Division.

Appeal allowed with costs.

Solicitors for the appellant: Hoyt, Mockler, Allen & Dixon, Fredericton.

Solicitors for the respondent: McKelvey, Macaulay & Machum, Saint John.