Date: 20050316
Dossier: A-340-04
Citation: 2005 FCA 103
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
YOLETTE SINCÈRE
Applicant
and
ATTORNEY GENERAL
Respondent
Hearing held at Montréal, Quebec, on March 16, 2005.
Judgment delivered at Montréal, Quebec, on March 16, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20050316
Docket: A-340-04
Citation: 2005 FCA 103
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
YOLETTE SINCÈRE
Applicant
and
ATTORNEY GENERAL
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on March 16, 2005)
LÉTOURNEAU J.A.
[1] The disposition of this application for judicial review under section 28 of the Federal Courts Act, R.S.C. (1985), c. F-7, as amended, depends, in our view, on the decisions of this Court in Doyon v. Public Service Staff Relations Board, [1979] 2 F.C. 190 (F.C.A.) and National Capital Commission v. Public Service Alliance of Canada, [1996] F.C.J. No. 1565 (F.C.A.). According to those decisions, the Public Service Staff Relations Board (PSSRB) has no jurisdiction to review an adjudicator's decision.
[2] The applicant applied to the PSSRB for review of the decision of an adjudicator who, rightly or wrongly, found that she did not have jurisdiction to hear the applicant's grievance. The PSSRB was therefore justified in stating that section 27 of the Public Service Staff Relations Act, R.S.C. (1985), c. P-35, as amended, did not authorize it to review, rescind, amend, alter or vary the adjudicator's decision.
[3] The applicant argues that Ms. Matteau, to whom the grievance was referred, was acting not as an adjudicator but as the PSSRB. There is no factual or legal basis for this claim, since it appears from the record that the applicant had filed a grievance, which was referred to adjudication. The fact that Ms. Matteau, acting as a grievance adjudicator, designated herself and signed her decision as Deputy Chairperson only adds to the confusion that often exists between the roles of adjudicator, member and Board, which have different bases in law, wield different powers and give rise to different remedies in case of legal challenges.
[4] The applicant relied on subsection 84(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, which authorizes the Board to "dismiss a grievance on the ground that it is not a grievance that may be referred to adjudication pursuant to section 92 of the Act".
[5] In our opinion, that provision does not apply to this case since the grievance was referred to adjudication and the preliminary objections to the adjudicator's jurisdiction were determined by her as the adjudicator.
[6] Unfortunately, the applicant erred in asking the PSSRB to review a decision of the grievance adjudicator that she deemed erroneous. The remedy then open to her was an application for judicial review before the Federal Court under section 18 of its constituting statute: Beirnes v. Canada (Treasury Board) (1993), 67 F.T.R. 226.
[7] For these reasons, and not without regret, the applicant's application for judicial review will be dismissed. Except for the hearing before us, for which the applicant retained legal counsel, she represented herself in what can prove to be, for the uninitiated, a procedural labyrinth. Under the circumstances, the application will be dismissed, but without costs.
"Gilles Létourneau"
J.A.
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-340-04
STYLE OF CAUSE: YOLETTE SINCÈRE v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 16, 2005
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
REASONS FOR JUDGMENT
OF THE COURT BY: LÉTOURNEAU J.A.
APPEARANCES:
|
Mark E. Wener Yolette Sincère |
FOR THE APPLICANT FOR HERSELF |
|
Jennifer Champagne Johanne Gagnon |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Gossack Wener Montréal, Quebec |
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT |