Date: 20010525
Docket: T-1231-99
Neutral Citation 2001 FCT 529
BETWEEN:
THE ATTORNEY-GENERAL OF CANADA
Applicant
- and -
DANNY LEONARDUZZI
Respondent
A. INTRODUCTION
[1] This is an application for judicial review by the Attorney General for Canada representing Transport Canada (the "applicant") pursuant to section 18.1 of the Federal Court Act challenging an interlocutory decision of the Public Service Staff Relations Board (the "Board") represented by Adjudicator P. Chodos, its Vice-Chairperson, requiring Transport Canada, the employer, to lead evidence to establish that Mr. Leonarduzzi's (the "respondent") employment was terminated pursuant to section 28 of the Public Service Employment Act (the "PSEA") while on probation.
[2] The legal backdrop to this application is the interplay between two federal public service employment statutes:
(1) Section 92 of the Public Service Staff Relations Act ("PSSRA") which provides for adjudication by the Board where an employee has grieved ... a termination of employment pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act or disciplinary action resulting in termination.
(2) Section 28 of the PSEA dealing with probationary periods for people appointed from outside the public service and the rejection of a probationary employee for cause.
(3) The prohibition in subsection 92(3) of the PSSRA of a reference to adjudication by the Board of a termination of employment under the PSEA.
B. BACKGROUND
[3] Transport Canada hired the respondent as an air traffic control trainee at the Toronto Area Control Centre at Lester B. Pearson International Airport. By letter dated February 9, 1996, Transport Canada offered Mr. Leonarduzzi an indeterminate appointment as an IFR trainee, subject to successful completion of the basic training programme at Transport Canada's Training Institute in Cornwall, Ontario. The third paragraph of that letter reads:
Since you have been appointed from outside the Public Service you are subject to a probationary period for the full duration of training. As such, you are expected to meet the requirements of the Unit Qualification Training Program while at the Regional Training Unit (RTU) and in on-the-job training (OJT). Failure to meet requirements will result in your being rejected while on probation.[emphasis mine]
[4] The respondent's employment was terminated on July 10, 1996. The acting Regional Director of Transport Canada's Air Traffic Services for Ontario wrote advising him he was rejected while on probation. The first paragraph of that letter reads:
As a result of your failure to meet the required standards for the Air Traffic Control Training Program, a recommendation was made that your training be ceased. I have reviewed the pertinent documentation and, based on the information contained therein, concur with the recommendation.
You are hereby rejected on probation... . [emphasis mine]
[5] On August 9, 1996, the respondent grieved Transport Canada's July 10, 1996 decision. He details his grievance as follows:
I have been improperly dismissed and terminated. This was done in bad faith and contrary to the employer's policies and practices. I wish to be reinstated in a position as an ATC trainee or to be offered alternate employment within ATS or be designated as being transferred to NAV Canada. I would prefer to be reinstated at a location other than the one where my employment was terminated. I wish to be reimbursed for any losses of pay, benefits and entitlements or otherwise to be made whole. [emphasis mine]
[6] His grievance was considered at the first and subsequently at a final level of the grievance process. On May 30, 1997, Mr. Leonarduzzi formulated, pursuant to section 92 of the PSSRA, a Reference to Adjudication before the Board, which the Vice-President, Labour Relations of the Canadian Air Traffic Control Association approved on June 13, 1997.
[7] The Board's hearing commenced on May 31, 1999. At the outset, on consent of both parties, two documents were admitted into evidence. The first document was the February 9, 1996 letter; the other document was the July 10, 1996 letter from Transport Canada to the respondent rejecting him on probation.
[8] The Vice-Chairperson described the proceedings leading to the impugned decision in these terms at page 2:
Counsel for the parties were invited to make submissions respecting the burden of proof and the order of proceeding at this hearing. The submissions were taken under advisement and the following day I made my ruling on these issues which, in essence, directed the employer to provide some evidence as to the reasons for the purported rejection on probation. The employer objected to this ruling and requested that it be issued in writing, and that the hearing be adjourned in order to facilitate an application for review to the Federal Court. Counsel for the grievor indicated that she had no objection to the adjournment and to the issuance of a preliminary decision. Accordingly, the hearing was adjourned sine die, and I undertook to issue this decision. [emphasis mine]
C. THE ARGUMENTS BEFORE THE BOARD AND THE BOARD'S DECISION
(1) The arguments before the Board
[9] Counsel for the grievor had submitted to the Board that, before concluding it had no jurisdiction, it must first determine whether the respondent was terminated pursuant to the PSEA. In other words, the employer had to show all of the conditions required by section 28 of the PSEA had been met which were: (1) the employee must be on probation; (2) the termination must take place during the probationary period; and (3) the rejection must be for cause.
[10] Counsel for the grievor argued before the Board "cause" means "just cause", that is, the employer must make a prima facie case the grievor's termination was justified and the question of good or bad faith is only relevant once the employer has demonstrated "cause" in accordance with this section of the PSEA.
[11] Counsel for the Attorney General submitted the Board must accept on its face that this is a rejection on probation in accordance with the PSEA, a matter over which an adjudicator appointed under the PSSRA has no jurisdiction. Accordingly, the burden of proof lies with the grievor to demonstrate bad faith. Counsel for the applicant noted the letter of rejection on probation speaks of "failure to meet the required standards" and this letter alone is sufficient to bar any Reference to Adjudication and establishes a presumption the employer has acted in good faith.
(2) The Board's Decision
[12] The essence of the Board's decision is contained in the following excerpts found at pages 9 and 10 of its reasons:
... where a grievance alleging a termination of employment is referred to adjudication, in the face of a jurisdictional objection, it is incumbent on the adjudicator to determine whether in reality there has been a termination of employment pursuant to the PSEA, as opposed to a subterfuge or "camouflage", (the term used by the Supreme Court in the Jacmain decision). What evidence is required in order for an adjudicator to make that initial determination depends on the nature of the purported termination. I agree with counsel for the grievor that, when termination purports to be a rejection on probation for cause per section 28 of the PSEA, the adjudicator must determine whether the rejection on probation was "cause" as that term is used in section 28. It is interesting to note that the term "cause" is found both in section 28 and in the complementary legislation of section 11 of the Financial Administration Act. Clearly therefore, this is a term that has some meaning and importance in the context of the rights of employees in the federal Public Service.
In my view, in order to demonstrate that the adjudicator cannot address the employee's grievance, the employer must provide some evidence which would show that there is a real employment-related reason for the termination of the grievor's employment during the probationary period. In this instance, the employer has utterly failed to do this; despite being invited to do so, the employer has called no evidence, but rather is insistent that it needs to do nothing beyond establishing the existence of a letter purporting to reject the grievor on probation. I have no idea who is the author of the decision, what factors he considered in making that decision, what are the standards that are alluded to in the rejection on probation letter and indeed whether such standards actually exist... . While I have some doubts as to whether the term "cause" as found in section 28 means "just cause" as urged by counsel for the grievor, I believe that there is a minimum threshold of evidence required from the employer, which would enable the adjudicator to make a reasonably informed decision as to whether he or she has jurisdiction to determine the grievance on the merits. I have no doubt that this does require the employer, through proper evidence, to demonstrate that there was indeed a "reason" for its actions.
Acceding to the employer's submissions would open the door to decisions which may be entirely arbitrary, based on irrelevant considerations, and possibly without a scintilla of legitimacy. It should be kept in mind that it is the employer who is uniquely in a position to know why it took the decision that it did; in the absence of providing at least minimal evidence and information, it puts the grievor in the invidious position of having to speculate as to the reasons behind the decision, and thereby assume an almost impossible burden of seeking to demonstrate bad faith. This is not mandated by the legislation in question, and flies in the face of simple fairness and common sense ...".
. . . I believe that there is a requirement on the part of the employer to demonstrate before the adjudicator that section 28 of the PSEA applies, in which case the adjudicator is deprived of jurisdiction in accordance with subsection 92(3) of the PSSRA. However, this falls short of requiring the employer to demonstrate "just cause" as that term is normally understood in a labour relations context. That is, I do not believe the employer has the burden of justifying its decision to terminate the employee, beyond providing a bona fide employment-related reason for doing so. It is required only to demonstrate that it is acting in accordance with the provisions of the PSEA. To hold otherwise, would be contrary to subsection 92(3) of the PSSRA.[emphasis mine]
D. ISSUES
(1) In the circumstances of this particular case does judicial review lie from the Board's interlocutory decision?
(2) Did the adjudicator err in law by ruling the employer had the initial burden of leading evidence to establish the termination of employment was pursuant to section 28 of the PSEA?
E. LEGISLATION
[13] The relevant statutory provisions of the PSEA are as follows:
| 28. (1) An employee who was appointed from outside the Public Service shall be considered to be on probation from the date of the appointment until the end of such period as the Commission shall establish by regulation for that employee or any class of employees of which that employee is a member. 28(1.1) Idem (1.1) A probationary period established pursuant to subsection (1) is not terminated by any appointment or deployment of the employee made during the period. 28(2) Rejection (2) The deputy head may, at any time during the probationary period of an employee, give notice to the employee that the deputy head intends to reject the employee for cause at the end of such notice period as the Commission may establish for that employee or any class of employees of which that employee is a member, and the employee ceases to be an employee at the end of that period. |
28. (1) À partir de la date de sa nomination à un poste pourvu par nomination externe, le fonctionnaire est considéré comme stagiaire durant la période fixée par règlement par la Commission pour lui ou la catégorie de fonctionnaires dont il fait partie. 28(1.1) Idem (1.1) Une nouvelle nomination ou une mutation n'interrompt pas le stage. 28(2) Renvoi (2) À tout moment au cours du stage, l'administrateur général peut aviser le fonctionnaire de son intention de le renvoyer, pour un motif déterminé, au terme du délai de préavis fixé par la Commission pour lui ou la catégorie de fonctionnaires dont il fait partie. Le fonctionnaire perd sa qualité de fonctionnaire au terme de cette période. |
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[14] The relevant statutory provisions of the Public Service Staff Relations Act (the "PSSRA") are as follows:
| 92. (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 the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. 92(2) Approval of bargaining agent (2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings. 92(3) Termination under P.S.E.A. not grievable (3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act. 92(4) Order (4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I. |
92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur_: a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale; b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques; c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire. 92(2) Approbation de l'agent négociateur (2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage. 92(3) Exclusion (3) Le paragraphe (1) n'a pas pour effet de permettre le renvoi à l'arbitrage d'un grief portant sur le licenciement prévu sous le régime de la Loi sur l'emploi dans la fonction publique. 92(4) Décret (4) Le gouverneur en conseil peut, par décret, désigner, pour l'application de l'alinéa (1)b), tout secteur de l'administration publique fédérale spécifié à la partie II de l'annexe I. |
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F. ANALYSIS
(1) Does judicial review lie from the interlocutory decision of the Board?
[15] The applicant submits it is appropriate to seek judicial review of an interlocutory decision of a federal board on a question relating to its jurisdiction. The applicant alleges that, in the case at bar, there is a jurisdictional issue.
[16] The case law clearly establishes that, absent special circumstances, judicial review does not lie from an administrative tribunal's interlocutory decisions. In Szczecka v. Canada (Minister of Employment & Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.), Létourneau J.A. held at page 335:
This is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute.
[17] Evans J., as he then was, in Air Canada v. Lorenz, [2000] 1 F.C. 494 (T.D.), concluded at page 502:
Courts are similarly reluctant to intervene to review an interim or interlocutory decision prior to the conclusion of the proceeding before the administrative tribunal.
He further added at paragraph 37 of the same decision:
Thus, it has been said that a court should only intervene before the tribunal has rendered its final decision in "exceptional circumstances" (University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), 28 O.A.C. 295 (Ont. Div. Ct.), at page 306), in "exceptional or extraordinary circumstances" (Ontario College of Art v. Ontario (Human Rights Commission), supra, at page 799), or where the attack is on the "very existence of the tribunal" (Pfeiffer v. Canada (Superintendent of Bankruptcy) (T.D.), [1996] 3 F.C. 584 (T.D.) page 596).
[18] A review of the case law reveals an attack on the tribunal's jurisdiction or the absence of an appropriate remedy at the end of the proceedings would constitute special or exceptional circumstances. In Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.), Justice Tremblay-Lamer concluded at page 596:
...since the issue involves an attack on the very existence of the tribunal, there is a special reason permitting judicial review at this stage of the proceedings. As the Court held in Mahabir v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 133 (C.A.), at p. 140, it is a final decision that disposes of a substantive question before the tribunal.
[19] Recently, Sexton J.A. held in Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (F.C.A.) as follows at paragraph 10:
As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal's proceeding should not be challenged until the tribunal's proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for an unconscionably long period.
[20] In the case at bar, an appropriate remedy is available to the applicant at the end of the proceedings. Accordingly, to determine whether judicial review lies from the adjudicator's interlocutory decision, I must determine whether or not there is a jurisdictional issue.
(2) Was the decision a jurisdictional finding?
[21] The applicant submits that subsection 92(3) of the PSSRA expressly forbids the referral of a grievance to the Board for adjudication in the case of any termination of employment under the PSEA.
[22] The applicant contends Noël J.'s (as he then was) rationale in Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.), should be followed, and the only way to show the respondent's employment was not terminated under the PSEA would be to prove the conditions required to apply it were not present at the relevant time. In other words, the probationary employee (1) must prove he/she was not on probation; and (2) termination did not take place during the probationary period. The applicant further submits these are the only two operative conditions.
[23] I cannot agree with this submission because, in my view, the applicant is interpreting Justice Noël's comments too narrowly and out of context.
[24] The Attorney General relies on what Justice Noël said at note 15 of his reasons in these terms:
I want to emphasize that in so far as the action or termination of employment occurred under section 29, a simple demonstration of bad faith or malicious intent on the employer's part (such as proof of an obvious desire to get rid of the employee at the first opportunity) would not confer jurisdiction on the Adjudicator since, whether or not there was bad faith, the grievance would still be a grievance with respect to a termination of employment under the Public Service Employment Act, which subsection 92(3) of the Public Service Staff Relations Act excludes from the Adjudicator's jurisdiction. When the employer argues that the employment was terminated under the Public Service Employment Act, the only way to show that it was not would be to prove that the conditions required to apply it were in fact not present at the relevant time and that the employment cannot therefore have been terminated under that Act. [emphasis mine]
[25] Rinaldi, supra, was a case where the Attorney General sought to prohibit an Adjudicator from continuing a PSSRB hearing into the termination of a probationary employee who alleged he really was not laid off pursuant to section 29 of the PSEA but was for disciplinary reasons, thus giving rise to a jurisdiction for the Board to adjudicate the grievance under section 92 of the PSSRA.
[26] The Adjudicator, in Rinaldi, supra, had decided to continue the hearing saying at paragraph 9:
If you establish that the termination of the employment was not a genuine layoff but rather a decision made in bad faith, a ruse, a disciplinary dismissal in disguise, then I would be willing to say that subsection 92(3) of the Public Service Staff Relations Act does not prevent me from having jurisdiction.
[27] Justice Noël dismissed the Attorney General's prohibition application.
[28] He relied upon the following statement made by Justice Marceau in Penner, infra, "a camouflage to deprive a person of a protection given by the statute is hardly tolerable".
[29] Justice Noël said the essence of the employee's case was a possible scenario where the employer disguises an unlawful dismissal under the cover of a layoff consequent upon a reorganization, a situation which would fall within the jurisdiction conferred on adjudicators by paragraph 92(1)(b) of the PSSRA.
[30] Justice Noël added the respondent probationary employee might prove a turbulent employment relationship and added "[H]e would then also have to show that the employer's reliance on section 29 [the PSEA layoff provision] is contrived". It is immediately after this sentence that Justice Noël wrote as note 15 the quote found at paragraph 24 of these reasons. His reference to "would be to prove that the conditions required to apply it were in fact not present" clearly relates to a situation of a sham, contrivance or disguise.
[31] I agree with the Attorney General that Parliament's intent in enacting subsection 92(3) of the PSSRA was to forbid the adjudication by the Board of rejections on probation. However, Parliament did not prohibit an adjudicator from ascertaining whether a rejection on probation is in reality pursuant to the PSEA. In Rinaldi, Noël J. stated at paragraph 17:
Contrary to the applicant's submission, no statutory amendment has limited this principle. The addition to the Public Service Staff Relations Act of subsection 92(3), which bars the adjudication of a grievance with respect to a termination of employment under the Public Service Employment Act, does not remove jurisdiction from the Adjudicator solely because such a termination of employment is relied on by the employer. Subsection 92(3) clearly bars a referral to adjudication only where there was in fact a termination of employment under that Act. The hypothesis on which the Adjudicator based her decision in fact concerns a situation in which an employer disguises an unlawful dismissal under cover of the abolishment of a position through a contrived reliance on that Act. Such a situation would clearly fall within the jurisdiction conferred on adjudicators by paragraph 92(1)(b) of the Public Service Staff Relations Act. [emphasis mine]
[32] In the face of the respondent's grievance alleging bad faith in respect of his rejection on probation, the adjudicator, here, required evidence from the employer to determine whether its termination was under the PSEA and therefore beyond its jurisdiction, or if it was for reasons foreign to the PSEA upon which it could ground jurisdiction under section 92 of the PSSRA. The adjudicator's authority to deal with the grievance depends entirely on this decision of fact. An error in determining the facts would warrant intervention by this Court, as Justice MacKay concluded in Canada (Attorney General) v. Horn, [1994] 1 F.C. 453 (T.D.) at pages 467-468 .
_In my opinion, in light of the decision of Cory J. for the majority in the '93 PSAC case the Adjudicator here, dealing with the grievance of Ms. Horn under subsection 92(1) of the PSSRA, in determining whether the matter was a grievance in relation to "disciplinary action resulting in discharge", was dealing with a question of jurisdiction, where simple error warrants intervention of the Court on judicial review. . . .If that is so, mere error in applying the Act, i.e. subsection 92(1) PSSRA, is sufficient to find that the Adjudicator has exceeded the statutory jurisdiction conferred; or as it is sometimes said he must be "correct" in his interpretation.
_The Adjudicator, in determining the question of whether the respondent's grievance was one within subsection 92(1) as concerning "disciplinary action resulting in discharge", was required to assess the action taken by the employer purporting to act under section 27 of the PSEA. His decision, that the action was taken for disciplinary reasons and thus constituted a discharge within his jurisdiction under paragraph 92(1)(b) of the PSSRA, was a decision of fact, but one sometimes described as jurisdictional fact since his authority to deal with the merits of the grievance was dependent upon his determination of that fact. [emphasis mine]
[33] Here, there was no determination by the adjudicator on its jurisdiction. The Chairperson merely determined the procedure to follow to assess whether statutory exclusion under subsection 92(3) of the PSSRA applied. This does not constitute a jurisdictional error. The Board has yet to decide on its jurisdiction.
(3) Does requiring the employer to lead evidence constitute an error of law?
(i) burden of proof
[34] The applicant submits that in a civil proceeding, the burden of proof does not shift. The applicant argues the Board erred by directing the employer to lead evidence to establish that section 28 of the PSEA applied, given the applicant's position that the burden of proof does not rest with the employer in the matter at hand.
[35] The respondent submits that it is the employer who invokes section 28 of the PSEA, and therefore, the employer must establish the elements of the legislation it is invoking.
[36] The respondent further submits the adjudicator is entitled to determine the procedure to be followed, as long as that procedure respects the rules of natural justice and fairness.
[37] I agree with the respondent to a limited extent, that is to the extent stated by the Chairperson in this case as expressed in the Board's reasons. Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose.
[38] I find support in Justice Sopinka's reasons in Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, where absent specific rules laid down by statute or regulations, the PSSRB is free to adopt procedures it deems convenient, as long as it respects the rules of fairness and natural justice. He said at page 568:
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.
[39] The applicant alleges the adjudicator has opened the door to employees rejected on probation, or otherwise terminated pursuant to the PSEA, to oblige employers to validate their actions before an adjudicator.
[40] I simply do not agree with that position. The issue at hand is that of a dismissal, which the grievor is alleging was made in bad faith, and for which the employer has not given an employment related reason except to say the respondent did not meet the required standards. The employer, however, does not tell the respondent why he did not meet those standards. The employer cannot rely on subsection 28(2) to reject employees without giving a bona fide reason. That reason may have been given in the grievance process leading to the respondent's request for adjudication. However, I have no evidence on the point.
[41] In the circumstances, as the adjudicator put it, and I quote again, to do so would:
... open the door to decisions which may be entirely arbitrary, based on irrelevant considerations, and possibly without a scintilla of legitimacy. It should be kept in mind that it is the employer who is uniquely in a position to know why it took the decision that it did; in the absence of providing at least minimal evidence and information, it puts the grievor in the invidious position of having to speculate as to the reasons behind the decision, and thereby assume an almost impossible burden in seeking to demonstrate bad faith. This is not mandated by the legislation in question, and flies in the face of simple fairness and common sense.
[42] The respondent submits the employer must make a prima facie case that the grievor was terminated for just cause. This is not so. A distinction must be made between an employment related reason and "just cause". In Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (F.C.A), a case involving the jurisdiction of the Board to hear a grievance of a probationary employee terminated for cause under section 28 of the PSEA. Marceau J.A. stated at page 438:
Other adjudicators have adopted quite a different attitude and accepted that they had no jurisdiction to inquire into the adequacy and the merit of the decision to reject, as soon as they could satisfy themselves that indeed the decision was founded on a real cause for rejection, that is to say a bona fide dissatisfaction as to suitability. In Smith (Board file 166-2-3017), adjudicator Norman is straightforward:
In effect, once credible evidence is tendered by the Employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes shuddering to a halt. The adjudicator, at that moment, loses any authority to order the grievor reinstated on the footing that just cause for discharge has not been established by the Employer. [emphasis mine]
[43] Justice Marceau held it was the view Adjudicator Norman expressed above which was the only one authorized by the Supreme Court of Canada's decision in Re Jacmain v. Attorney General (Canada) et al., [1978] 2 S.C.R. 15 and the only one the legislation really supports.
[44] Had the adjudicator demanded the employer demonstrate just cause for dismissal, I would have concluded a jurisdictional error since such a requirement would be contrary to a plain reading of the applicable legislation as viewed in Penner, supra.
[45] However, as I see it, the adjudicator required only that the employer demonstrate the rejection was for an employment-related reason, i.e. a dissatisfaction with the suitability of the employee and, as such, was acting in accordance with the provisions of the PSEA. He stated at page 11:
To summarize, in my view it is incumbent upon the employer to demonstrate that section 28 of the PSEA, respecting rejection on probation for cause, has application. Upon discharging that initial burden, the burden of proof then shifts to the grievor to demonstrate that the employer's actions are in fact a sham or a camouflage, and therefore not in accordance with section 28 of the PSEA. It is only upon the discharge of that burden that the adjudicator can take jurisdiction under section 92 of the PSSRA and consider the grievance on its merits.
[46] What the Vice-Chairperson said was that the respondent probationary employee had the legal and evidentiary burden of establishing a sham but the employer had an initial evidentiary burden of establishing the rejection on probation was employment-related.
[47] Although the decision in Penner, supra, predates the adoption of subsection 92(3), I am of the view that its principles still apply. As I see it, the purpose of subsection 92(3) of the PSSRA which was added by Parliament in 1993 was to make clear what Jacmain and Penner said about the flexibility to be accorded the employer in the rejection of a probationary employee under the PSEA and this without recourse to adjudication under the PSSRA. At the same time, its addition as was held by Justice Noël in Rinaldi, supra, does not remove the ability from the adjudicator solely because such a termination is relied upon by the employer. The reason he said so was because subsection 93(2) only operates when there was in fact a termination under the PSEA.
[48] Moreover, Mackay J. in Horn, supra, held at page 470:
__That special role, and the expertise of those charged with responsibility under the PSSRA in the resolution of differences arising in labour relations in the public sector is now well settled... .
Determination of what constitutes "disciplinary action" in a given case was, in my view, intended by Parliament to be a matter for determination by those appointed as adjudicators by the Public Service Staff Relations Board pursuant to section 93 of the PSSRA. The question for the Adjudicator is whether the employer's action is "disciplinary action resulting in discharge" under subsection 92(1). It is the sort of question that lies within the core of the Board's concerns with labour management relations in the Public Service and within the recognized expertise and experience of those persons appointed by the Board as adjudicators... .
__These general considerations relating to appropriate deference for decisions of the Adjudicator lead me to consider that in this case the ultimate burden is on the applicant to persuade the Court that the Adjudicator was wrong in his finding that the respondent was discharged for disciplinary reasons.
[49] I am also of the view that the procedure adopted by the adjudicator is an acceptable practice. In Rinaldi, supra, the employer lead with his objections: the grievor responded, and the employer replied. A review of the decision in Michel Perreault (grievor) and Treasury Board (Transport Canada) File 166-2-26094 also indicates the employer lead with his objections, to which the grievor responded. The same appears to be the case in the Board's decision in Thomas Earle (grievor) and Treasury Board (Transport Canada) File No. 166-2-27346.
[50] Support for this procedure seems implicit in what Justice Marceau said about Jacmain in Penner at page 441:
The basic conclusion of the Jacmain judgment, as I read it, is that an adjudicator appointed under the P.S.S.R. Act is not concerned with a rejection on probation, as soon as there is evidence satisfactory to him that the employer's representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position. And, to me, this conclusion follows inexorably from the legislation as it is. [emphasis mine]
G. DISPOSITION
[51] This judicial review application is dismissed with costs.
J U D G E
OTTAWA, ONTARIO
MAY 25, 2001