The Federal Court of Appeal upheld a judicial review decision that set aside an adjudicator’s decision ordering the appellant’s reinstatement to his employment with the Correctional Service of Canada. While the reviewing court had erred in applying a standard of review of correctness to the adjudicator’s decision, the adjudicator’s decision was nonetheless unreasonable, in that he failed to properly apply the employer’s standards to the appellant’s conduct. Additionally, the adjudicator erred in his application of the arbitral jurisprudence in his characterization of the seriousness of the appellant’s offence, and by employing an empirical approach in determining whether the grievor’s conduct discredited the CSC.

Administrative law – Decisions of administrative tribunals – Public Service Staffing Tribunal – Employment law – Termination of employment – Code of discipline – Off-duty conduct – Judicial review – Adjudication – Compliance with legislation – Evidence – Standard of review – Reasonableness simpliciter

Tobin v. Canada (Attorney General), [2009] F.C.J. No. 968, Federal Court of Appeal, August 27, 2009, Létourneau, Pelletier and Ryer JJ.A.

The appellant had been dismissed by his employer, the Correctional Service of Canada (“CSC”), after he pleaded guilty to criminal harassment of a woman he met in the course of his duties for the CSC. The appellant grieved the dismissal, and an adjudicator appointed under the Public Service Staff Relations Act reinstated him on the ground that, since the conduct giving rise to the criminal conviction was off-duty conduct, the employer had not met the burden of showing it was entitled to discipline the employee.

On the CSC’s application for judicial review, the Federal Court set aside the adjudicator’s decision, as it failed to meet the correctness standard, and sent the matter back for redetermination in accordance with the legal principles set out in its reasons. The appellant appealed that decision.

The Federal Court of Appeal first considered the appropriate standard of review of the adjudicator’s decision. In its view, the reviewing judge’s assessment of the standard of review, deemed to be correctness, was flawed. An adjudicator under the Public Service Staff Relations Act is not simply an expert in labour relations but an expert in public service labour relations. The questions at issue in this case were the kind of questions which public service grievance adjudicators are commonly called upon to decide. The proper standard of review of the adjudicator’s decision was reasonableness. The adjudicator was an expert tribunal acting squarely within his expertise and, to that extent, was entitled to deference, even on questions on law.

The Court of Appeal moved on to consider the adjudicator’s consideration of the issue of off-duty conduct, as raised in the arbitral jurisprudence, without regard to the context provided by the CSC’s Standards of Professional Conduct and the Code of Discipline itself. The adjudicator viewed the issue before him as whether the appellant’s criminal conviction justified any discipline, not whether the discipline imposed as a result of the conviction was appropriate in the circumstances. The Commissioner’s Standards were not raised until the reviewing judge did so, as he was entitled.

The Court considered the effect to be given to the Commissioner’s Standards, and specifically whether they were “binding” on the adjudicator. The power to promulgate the Code of Discipline implies the right to assess employee conduct against the terms of that code, otherwise it serves no useful purpose. The Treasury Board’s authority to establish standards of discipline in the public service was delegated to the Commissioner who exercised it by promulgating the Code of Discipline. If the Commissioner has the right to promulgate the Code of Discipline, then presumably, he or she must have the right to have employee conduct assessed against the rules set out in the Code, otherwise they serve no useful purpose. That process cannot be short-circuited by assuming that since the conduct complained of is off-duty conduct, another set of rules apply. The adjudicator’s failure to apply the CSC’s standard’s to the grievor’s conduct was unreasonable.

The Court also found that the adjudicator erred in his application of the arbitral jurisprudence in his characterization of the seriousness of the grievor’s offence, and by employing an empirical approach, rather than one based on common sense and measured judgment, in determining whether the grievor’s conduct discredited the CSC.

In the result, the appeal was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.