Date: 20031010
Docket: A-98-03
Citation: 2003 FCA 376
CORAM: DESJARDINS J.A.
DÉCARY J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
CARMEL FORTIN
Respondent
Hearing held at Fredericton, New Brunswick, on October 2, 2003.
Judgment rendered at Ottawa, Ontario, on October 10, 2003.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS J.A.
PELLETIER J.A.
Date: 20031010
Docket: A-98-03
Citation: 2003 FCA 376
CORAM: DESJARDINS J.A.
DÉCARY J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
CARMEL FORTIN
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The respondent was a public servant employed by the Department of Citizenship and Immigration. He was declared surplus and laid off in September 1996 after an evaluation in reverse order of merit was made in July 1996, pursuant to the provisions of subsection 29(1) of the Public Service Employment Act.
[2] On July 25, 1996, the respondent filed a complaint with the Public Service Commission, in which he alleged that his evaluation was vitiated by the presence of a former supervisor on the evaluation board. The complaint was dismissed by the Commission on January 2, 1997. An application to reopen the hearing was also denied on May 25, 1999. The respondent did not seek judicial review in the Federal Court of either of those decisions.
[3] On April 6, 1999, the respondent filed a grievance pursuant to subsection 92(1) of the Public Service Staff Relations Act. He alleged essentially that the [TRANSLATION] "reorganization was a disciplinary measure, not a budgetary one" and that the evaluation process was vitiated by the bias of one member of the board. He explained that the reason he [TRANSLATION] "delayed filing this grievance was that I relied on the process initiated with the Public Service Commission" (a.c., p. 27).
[4] The employer considered that the adjudicator lacked jurisdiction. In its view, as the case related to a termination which was part of a reduction of staff subject to the Public Service Employment Act, the grievance could not be referred to arbitration as subsection 92(3) of the Public Service Staff Relations Act prohibited "a grievance with respect to any termination of employment under the Public Service Employment Act".
[5] Although the Public Service Employment Act does not define the words "termination of employment", it is clear that a staff reduction is a "termination of employment under" the Act within the meaning of subsection 92(3) of the Public Service Staff Relations Act (see the reasons of Jackett C.J. in Wright v. Public Service Staff Relations Board, [1973] F.C. 765 (F.C.A.), and R. v. Ouimet, [1979] 1 F.C. 55 (F.C.A.), and those of Pratte J.A. in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (F.C.A.)).
[6] Since Penner, supra, it has been established that an adjudicator does not have jurisdiction to hear a grievance relating to termination of employment but, when an employee maintains that the termination is actually the result of a disguised disciplinary action, he or she has jurisdiction to determine whether this actually was a termination of employment under the Public Service Employment Act or was in fact a disguised disciplinary action. In the former case, the adjudicator must dismiss the grievance forthwith for lack of jurisdiction. In the latter case, he has jurisdiction to decide it (see also Canada (Treasury Board) v. Rinaldi (1997), 127 F.T.R. 60; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529).
[7] In the case at bar the adjudicator, after a lengthy review of the evidence, concluded that [TRANSLATION] "Mr. Fortin's termination of employment was not a disguised disciplinary termination and was an administrative decision made in good faith and in accordance with subsection 29(1) of the Public Service Employment Act" (a.c., p. 36).
[8] The Federal Court judge hearing the application for judicial review filed by the respondent took the same view as the adjudicator on this point. This part of the judge's decision seems unimpeachable.
[9] The judge should then have dismissed the application for judicial review since, like the adjudicator, he had no jurisdiction to go further in reviewing the grievance. However, he chose to go further, to rule on the question of the validity of the evaluation process, to conclude that the process had been vitiated on account of apparent bias and to allow the application for judicial review on this ground.
[10] That review and conclusion were not within the judge's authority. The question had already been decided by the Public Service Commission and that Commission's decision was not the subject of any application for judicial review. The judge was aware that he had ventured into territory that was not his own since, at paragraph 67 of his reasons, he said that [TRANSLATION] "at the hearing, although it was beyond the deadline, I strongly suggested that the plaintiff file an application for judicial review from the Commission's decision dated January 2, 1997, dismissing his complaint".
[11] The judge accordingly exceeded his jurisdiction by ruling on a point that was not before him.
[12] I would allow the appeal, but without costs, as suggested by counsel for the Attorney General, I would reverse the decision of the Federal Court judge and, rendering the judgment he should have rendered, I would dismiss the application for judicial review and restore the adjudicator's decision.
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"Robert Décary"
J.A.
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"I concur.
Alice Desjardins J.A."
"I concur.
J.D. Denis Pelletier, J.A."
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-98-03
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
v.
CARMEL FORTIN
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: October 2, 2003
REASONS FOR JUDGMENT: Décary J.A.
CONCURRED IN BY: Desjardins J.A.
Pelletier J.A.
DATE OF REASONS: October 10, 2003
APPEARANCES:
Jennifer Champagne FOR THE APPELLANT
Carmel Fortin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
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