Burgess v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health

[Indexed as: Burgess v. Ontario (Ministry of Health)]

55 O.R. (3d) 507

[2001] O.J. No. 1190

Docket No. C33732

Court of Appeal for Ontario

Goudge, MacPherson and Simmons JJ.A.

April 4, 2001*

• Note: This judgment was recently brought to the attention of the editors.

Employment -- Wrongful dismissal -- Jurisdiction -- Public employee released from employment when his position declared surplus under s. 22(4) of Public Service Act -- Employee brought action for damages for wrongful dismissal -- Dismissal from employment under s. 22(2) or s. 22(3) of Act may be grieved before Public Services Grievance Board by virtue of ss. 32(1) and 33(1) of Reg. 977 -- Reg. 977 does not provide for grievance where employee released under s. 22(4) of Act -- Employer's characterization of dismissal as "release" not determinative -- Section 22(3) of Act potentially implicated if employee wrongfully dismissed -- Public Services Grievance Board and courts both had prima facie jurisdiction to hear complaint -- Board not better suited than courts to hear complaint -- Employee's access to courts should be preserved in absence of explicit statutory or contractual term -- Court not required to defer to Board -- Public Service Act, R.S.O. 1990, c. P.47, ss. 22(2), (3) , (4) -- O. Reg. 977, R.R.O. 1990, ss. 32(1), 33(1).

The plaintiff, a public employee, was released from his employment when his position was declared surplus under s. 22(4) of the Public Service Act, R.S.O. 1990, c. P.47. The plaintiff took the position that the elimination of his employment was done in bad faith and amounted to a disguised dismissal. He brought an action for damages for wrongful dismissal in the Ontario Superior Court of Justice. The defendant employer brought a motion for an order dismissing the action on the basis that the Public Services Grievance Board had exclusive jurisdiction to deal with the plaintiff's complaint about his termination. Alternatively, the defendant submitted that, even if the court had concurrent jurisdiction to hear the matter, it should decline to do so and should defer to the specialized jurisdiction of the Board. The motions judge dismissed the motion. The defendant appealed.

Held, the appeal should be dismissed.

O. Reg. 977 under the Public Service Act established the Public Services Grievance Board to deal with, inter alia, certain grievances brought by discharged employees. The jurisdiction of the Board is grounded in a prior decision by the Deputy Minister. Sections 32(1) and 33(1) of Reg. 977 give the Deputy Minister jurisdiction to hear grievances brought by public servants who have been removed or dismissed from their positions pursuant to ss. 22(2) and (3) of the Act. Reg. 977 is silent about the applicability of the grievance procedure to public servants who have been released pursuant to s. 22(4) of the Act, as was the plaintiff. However, the motions judge erred in holding that this lacuna in the legislative scheme meant that the Board had no jurisdiction to hear the plaintiff's complaint. The fact that the defendant labelled the plaintiff's termination a "release" pursuant to s. 22(4) of the Act was not determinative of its characterization. The plaintiff explicitly claimed that he was wrongfully dismissed, which would potentially implicate s. 22(3) of the Act (dismissal with cause), to which the grievance procedure in Reg. 977 applies. The defendant and other public servants in the plaintiff's position who might prefer to pursue the statutory grievance route were entitled to contend that both the Board and the courts had prima facie jurisdiction to hear the complaint.

There was very little in the legislative scheme to suggest that the Board was better suited than the courts to hear the plaintiff's complaint. First, with respect to the claim of wrongful dismissal advanced by the plaintiff, the courts were an expert tribunal. As to the assertion of release advanced by the defendant, there was a gap or lacuna or silence in the legislative scheme concerning the adjudicative process. Since two categories of grievance were specifically assigned to the Board, the silence respecting the release category suggested that the legislature was of the view that the grievance procedure was not appropriate for it. Second, it was unsettling that the defendant should formally notify the plaintiff that he was being released pursuant to s. 22(4) of the Act, but then say, for the purposes of its jurisdictional argument, that the plaintiff's claim raised a potential issue of wrongful dismissal and should be heard by the Board. Third, with respect to the categories of termination covered by the Act and Reg. 977, the jurisdiction of the Board is not mandatory. Section 36(1) of Reg. 977 provides that a grievor "may" apply to the Board. This is not the obligatory wording, anchored in the word "shall" and usually coupled with a strong privative clause, that is the hallmark of many legislative schemes relating to specialist tribunals. Fourth, the Supreme Court of Canada has held that, while the terms and conditions of a contract may be dictated, in whole or in part, by statute, the employment relationship remains a contract in substance and the general law of contract will apply unless specifically superceded by explicit terms in the statute or the agreement. For years, the general law of contract has provided employees the right of access to the courts to challenge the termination of their employment on grounds of breach of contract. In the absence of an explicit term, the plaintiff's right of access to the courts should be preserved. The nature of the plaintiff's claim and the legislative scheme of the Act and Reg. 977 did not establish a reason for the courts to defer to the Board.

APPEAL from a judgment of Cumming J. (2000), 1999 CanLII 15110 (ON SC), 46 O.R. (3d) 469, 48 C.C.E.L. (2d) 9 dismissing a motion for an order dismissing an action for damages for wrongful dismissal.

Danilov v. Canada (Atomic Energy Control Board) (1999), 1999 CanLII 4480 (ON CA), 48 C.C.E.L. (2d) 34, 125 O.A.C. 130 (C.A.) [Leave to appeal to S.C.C. denied (2000), 260 N.R. 399n]; St. Anne Nackawic Pulp & Paper Ltd. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, 73 N.B.R. (2d) 236, 28 D.L.R. (4th) 1, 68 N.R. 112, 184 A.P.R. 236, 86 C.L.L.C. 14,037; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. Â210-027; Wells v. Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 S.C.R. 199, 180 Nfld. & P.E.I.R. 269, 177 D.L.R. (4th) 73, 245 N.R. 275, 548 A.P.R. 269, 46 C.C.E.L. (2d) 165, 99 C.L.L.C. Â210-047, consd Other cases referred to Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 181 N.S.R. (2d) 356, 182 D.L.R. (4th) 373, 560 A.P.R. 356, 40 C.P.C. (4th) 1, 6 C.C.E.L. (3d) 215, [1999] N.S.J. No. 448 (C.A.) [Leave to appeal to S.C.C. refused (2000), 262 N.R. 399n], affg (1999), 1999 CanLII 36345 (NS SC), 181 N.S.R. (2d) 111, 560 A.P.R. 111, 37 C.P.C. (4th) 344 (S.C.); Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 189 Sask. R. 23, 183 D.L.R. (4th) 14, 251 N.R. 16, 216 W.A.C. 23, [2000] 4 W.W.R. 149, 50 C.C.E.L. (2d) 1, 2000 C.L.L.C. 220-027; Trudell and the Ministry of Agriculture and Food (1990), Board File No. P/0006/90 (PSGB) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 11(2) Industrial Relations Act, R.S.N.B. 1973, c. I-4 Public Service Act, R.S.O. 1990, c. P.47, ss. 22(2), (3), (4) [as am.], (4.1) Public Service Staff Relations Act, R.S.C. 1985, c. P-35 Rules and regulations referred to O. Reg. 977, R.R.O. 1990 (Public Service Act), ss. 31(5), 32(1), 33(1), 36(1) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (a)

M. Norman Grosman and Natalie C. MacDonald, for respondent. Leonard Marvy and Lucy McSweeny, for appellant.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] A senior Ontario public servant was released from his position, allegedly on the basis that it was necessary to abolish the position because it was surplus. The public servant did not accept this explanation; in his view, the elimination of his position was done in bad faith and amounted to a disguised and wrongful dismissal. The public servant initiated an action for damages for wrongful dismissal in the Ontario Superior Court of Justice.

[2] The employer, the provincial Crown, took the position that the public servant could not proceed with his action before the Ontario courts because there was a statutory grievance procedure which governed the employment relationship between the parties. The Crown brought a motion seeking an order dismissing the action on two bases: first, that the Public Service Grievance Board, the tribunal created by statute to hear grievances, had exclusive jurisdiction to deal with the public servant's complaint about his termination; and second, that even if the court had concurrent jurisdiction to hear the matter, it should decline to do so and should defer to the specialized jurisdiction of the Public Service Grievance Board.

[3] The motions judge, Cumming J., dismissed the Crown's motion. The Crown appeals from that decision.

[4] The appeal raises yet again the important and, at times, difficult issue of the relationship between superior courts of general jurisdiction and specialized administrative tribunals created by statute: see, generally, St. Anne-Nackawic Pulp & Paper Ltd. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, 28 D.L.R. (4th) 1 ("St. Anne-Nackawic"), and Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583 ("Weber").

[5] The appeal also requires consideration of the nature of the employment relationship and the employment contract in the public sector, a matter that has been the subject of recent attention in the Supreme Court of Canada and in this court: see Wells v. Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 S.C.R. 199, 177 D.L.R. (4th) 73, and Danilov v. Canada (Atomic Energy Board) (1999), 1999 CanLII 4480 (ON CA), 125 O.A.C. 130, 48 C.C.E.L. (2d) 34 ("Danilov").

B. Factual Background

(1) The parties and the events

[6] The respondent, Peter Burgess ("Burgess"), commenced his career in the Ontario public service in 1982. During the next decade, he held several managerial positions in the Ministry of Health. In 1990, Burgess was appointed to the position of Director, Client Services Branch. In 1992, he was appointed Director, Registration Program Branch, in the same ministry.

[7] In 1992, the Provincial Auditor released a report suggesting that there were many more health cards than people in Ontario. Burgess headed up a team charged with investigating this allegation. His team produced a report which identified approximately $691 million in fraud, waste and abuse in the health care system in Ontario and made 42 recommendations for correcting the problems. The report was leaked to the media. Burgess denies any involvement with the leak.

[8] In 1994, Burgess' position was abolished and he was temporarily assigned to the Registration Enhancement Project in the health ministry. Burgess regarded this position as "less significant" and "increasingly isolated" in comparison with his previous position as branch director. On March 31, 1997, Burgess' employment with the Ministry of Health was terminated after his position was declared surplus.

(2) The litigation

[9] In 1999, Burgess commenced an action against the defendant, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health ("the Crown"). He sought damages for wrongful dismissal and mental distress, incremental damages for the bad faith actions of the employer in respect of the termination of his employment and punitive damages.

[10] The Crown responded that it terminated Burgess because of an organizational change that rendered his position surplus. The Crown relied on s. 22(4) of the Public Service Act, R.S.O. 1990, c. P.47 ("PSA"), which provides:

22(4) A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization.

[11] Pursuant to the Public Service Act's Regulations, R.R.O. 1990, Reg. 977, as amended ("Reg. 977") a statutory tribunal, the Public Services Grievance Board ("PSGB"), was established to deal with, inter alia, certain grievances brought by employees who had been discharged.

[12] The Crown took the position that Burgess' complaint about his release was more appropriate to the grievance procedure under the Public Service Act than to determination in the courts. In short, the Crown asserted that the PSGB, not the courts, should deal with Burgess' complaint. Relying on this position, the Crown brought a motion under rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order dismissing Burgess' action.

(3) The motion judge's decision

[13] The motion's judge dismissed the Crown's motion. He carefully reviewed the relevant provisions of the PSA and Reg. 977 and the leading case authorities. He was particularly influenced by the fact that Reg. 977 contained several provisions which explicitly conferred jurisdiction on the PSGB in certain types of termination of employment situations. The absence of a similar provision in the context of the 'surplus' type of termination authorized by s. 22(4) of the Public Service Act created, in the motions judge's view, a lacuna. In such a situation, he concluded [at p. 477 O.R.], "[t]he fundamental right of a citizen to access to this court is not abrogated . . .". Accordingly, Burgess' wrongful dismissal action could proceed in the courts.

C. Issues

[14] The Crown raises two issues on this appeal:

(1) Did the motions judge err in holding that Burgess' claim falls outside the scope of the jurisdiction of the PSGB?

(2) If the PSGB and the Ontario courts have concurrent jurisdiction to hear Burgess' claim, should the courts decline to exercise their jurisdiction and defer to the specialized jurisdiction of the PSGB?

D. Analysis

(1) Jurisdiction of the Public Services Grievance Board

[15] The motions judge held in effect that the courts have exclusive jurisdiction to deal with Burgess' complaint about his discharge from employment. He concluded his reasons for judgment [at p. 477 O.R.] with this summary:

This court has the inherent jurisdiction to hear and determine Mr. Burgess' claim of wrongful dismissal as recognized by s. 11(2) of the Courts of Justice Act. Jurisdiction to hear his grievance has not been conferred upon the PSGB by the Act and Reg. 977.

[16] The Crown contends that the motions judge erred in concluding that the PSGB did not have jurisdiction to hear Burgess' complaint. In making this contention, the Crown does not assert that the courts have no jurisdiction to hear the matter. Indeed, the manner in which the Crown has stated the issue for the appeal belies a submission that only the PSGB could hear the matter. In its Notice of Appeal, the Crown framed the second ground of appeal as: "Cumming J. erred in not giving the appropriate level of deference to the jurisdiction of the Public Service Grievance Board." In its factum, the Crown articulated the second issue in terms of "if the PSGB has jurisdiction, should the courts decline to take jurisdiction over the Plaintiff's wrongful dismissal claim?" The argument in the factum is developed with regular usage of the words "decline" and "defer". Accordingly, although in its original Notice of Motion the Crown stated as one of its grounds that "the Superior Court of Justice does not have the jurisdiction to hear the action", it is clear that, on appeal, the Crown's starting point is that both the PSGB and the courts have jurisdiction, but that the courts should decline to exercise their jurisdiction because of various factors pointing to the PSGB being the more appropriate forum.

[17] In my view, there can be little doubt that the courts have prima facie jurisdiction to hear Burgess' complaint. The motions judge relied on s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:

11(2) The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.

[18] An action for breach of the employment contract because of wrongful dismissal fits within the traditional jurisdiction of the courts.

[19] The central question on the first issue [of] the appeal is whether the motions judge erred when he concluded that the PSGB did not have a concurrent jurisdiction with the courts to hear Burgess' complaint.

[20] The Public Service Act grants authority to the Crown to terminate the employment of a public servant in certain situations. Of particular importance to this appeal are ss. 22(2), (3), (4) and (4.1) which authorize a deputy minister to, respectively, remove, dismiss and release a public servant:

22(2) A deputy minister may for cause remove from employment without salary any public servant in his or her ministry for a period not exceeding one month or such lesser period as the regulations prescribe.

(3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry.

(4) A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization.

(4.1) A deputy minister may release from employment in accordance with the regulations any public servant who is employed in a position or class of positions that is designated in the regulations on giving him or her reasonable notice or compensation in lieu of reasonable notice.

[21] The Crown purported to release Burgess under s. 22(4) of the Public Service Act. It stated that the project on which Burgess was working in 1997 was disbanded and that his position was declared surplus. The Crown sent a formal surplus notice to Burgess on March 31, 1997.

[22] Reg. 977, promulgated pursuant to the Public Service Act, establishes a grievance procedure for certain public servants. Four of the provisions are particularly relevant to this appeal:

31(5) No grievance shall include a complaint relating to a release from employment under subsection 22(4.1) of the Act.

32(1) A person who is aggrieved by his or her removal from employment under subsection 22(2) of the Act may file a grievance with his or her deputy minister within 14 days after receiving notice of the removal from employment.

33(1) A person described in subsection (2) who is aggrieved by his or her dismissal from employment under subsection 22(3) of the Act may file a grievance with his or her deputy minister within 14 days after receiving notice of the dismissal.

36(1) A grievor who is not satisfied with the decision of the deputy minister may apply to the Public Service Grievance Board within 14 days after receiving the decision for a hearing about his or her grievance.

[23] Section 36(1) of Reg. 977 establishes the jurisdiction of the PSGB to consider certain grievances. However, the jurisdiction is grounded in a prior decision by the deputy minister. Sections 32(1) and 33(1) of Reg. 977 give the deputy minister jurisdiction to hear grievances brought by public servants who have been removed or dismissed from their positions pursuant to ss. 22(2) and (3) of the Public Service Act. In other words, there is a direct link between s. 22(2) of the PSA and s. 32(1) of the Reg. 977 and another direct link between s. 22(3) of the PSA and s. 33(1) of the Reg. 977. The grievance procedure, including a role for the PSGB, applies to terminations of these two categories.

[24] However, there is no link between s. 22(4) of the PSA and Reg. 977. The regulation is silent about the applicability of the grievance procedure to public servants who have been released pursuant to s. 22(4) of the Public Service Act. Burgess was released, explicitly so, under that provision.

[25] Burgess contends, and the motions judge accepted, that this lacuna in the legislative scheme means that the PSGB has no jurisdiction to hear his complaint. With respect, I disagree. The fact that the Crown labelled Burgess' termination a 'release' pursuant to s. 22(4) of the Public Service Act is not determinative of its characterization. Indeed, in his Statement of Claim in this action, Burgess explicitly claims that he was wrongfully dismissed which would potentially implicate s. 22(3) (dismissal with cause) of the PSA, to which the grievance procedure in Reg. 977 applies.

[26] In both Weber, supra, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 183 D.L.R. (4th) 14 ("Regina Police Assn."), the Supreme Court of Canada held that jurisdiction in a specialist tribunal can arise either explicitly or by inference. In Regina Police Assn., Bastarache J. stated, at pp. 377-78 S.C.R.:

In Weber, McLachlin J. emphasized that disputes which either expressly or inferentially arise from the collective agreement should be heard by an arbitrator. As a result, an arbitrator may seize jurisdiction of a dispute even when the factual context of that dispute extends beyond what was expressly provided for in the collective agreement, to include what is inferentially provided. It is whether the subject matter of the dispute expressly or inferentially is governed by the collective agreement that is determinative.

[27] Bastarache J. then continued his analysis by extending the reasoning in Weber relating to arbitrators to the statutory tribunal, the Police Commission, in issue in Regina Police Assn. It follows that his analysis is also equally applicable to the statutory tribunal in issue in this appeal, the PSGB.

[28] Does Burgess' termination 'inferentially arise' from the matters that are covered by the grievance procedure in Reg. 977? In my view, it does. His termination is essentially a two- sided coin: the Crown labels it a release, Burgess views the release as a disguise or ruse for what he believes is, and calls, a wrongful dismissal.

[29] However, the labels cannot be determinative. Rather, I think that the resolution of the first issue on the appeal can be put into sharp relief by posing this question: if Burgess had sought to bring his 'wrongful dismissal' complaint to the PSGB and the Crown had challenged the jurisdiction of the PSGB on the basis that the Crown had 'released' Burgess, thus removing his complaint from the statutory grievance regime, would the courts have agreed with the Crown's position? I think not. I doubt that the courts would accept as determinative the Crown's label of 'release' and reject completely Burgess' assertion of 'wrongful dismissal'. Rather, I think the courts would conclude that both descriptions are possible and, therefore, the PSGB has jurisdiction, pursuant to s. 22(3) of the PSA and Reg. 977, to entertain Burgess' complaint that he has been dismissed without cause.

[30] Similarly in this appeal, Burgess' assertion that the PSGB has no jurisdiction to hear his complaint cannot be accepted. The Crown (and indeed other public servants in Burgess' position who might prefer to pursue the statutory grievance route) [See Note 1 at end of document] is entitled to contend that both the PSGB and the courts have prima facie jurisdiction to hear Burgess' complaint. For the reasons I have enumerated, in my view the Crown's contention on this issue is correct.

(2) Deference by the courts to PSGB jurisdiction?

[31] The motions judge did not address this issue because he determined that the courts had exclusive jurisdiction to hear Burgess' complaint. However, not surprisingly, the contents of his reasons favouring exclusive jurisdiction in the courts would point inexorably to the conclusion that, if there were concurrent jurisdiction in the courts and the PSGB, the courts should not defer to the jurisdiction of the PSGB. Moreover, it is worth repeating that the Crown does not assert that the courts must defer to the PSGB, but only that they should defer.

[32] The circumstances in which the courts should defer to the jurisdiction of a specialized tribunal have been considered in a long line of cases stretching back at least as far as the decision of the Supreme Court of Canada in 1986 in St. Anne- Nackawic, supra. In that case, the New Brunswick Industrial Relations Act, R.S.N.B. 1973, c. I-4 established a comprehensive scheme designed to govern all aspects of the relationship between employers and employees in a collective agreement context. Central to this scheme was adjudication of disputes by arbitrators. An employer initiated an action against a trade union seeking damages by reason of an illegal strike which apparently violated the applicable labour relations statute and breached a collective agreement. Estey J. carefully reviewed the legislation, the collective agreement and the relevant case law and held that the action for damages could not proceed because the courts should defer to the specialized jurisdiction of the ar bitrator. He said, at p. 721 S.C.R.:

What is left is an attitude of judicial deference to the arbitration process. This deference is present whether the board in question is a 'statutory' or a private tribunal . . . It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements.

[33] In Weber, supra, McLachlin J. stated, at p. 956 S.C.R.:

[T]he task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

[34] Strictly speaking, these authorities address the question of whether an arbitrator has exclusive jurisdiction over a dispute. However, they also suggest that in deciding whether the courts should defer to the administrative tribunal where each has jurisdiction, it is necessary to consider the nature of the dispute and the scheme of the legislation, with particular attention to its adjudicative component. This analysis should be undertaken with the objective of responding to the issue framed by Estey J. in St. Anne-Nackawic, namely, would allowing Burgess' complaint to proceed in the courts do "violence . . . to a comprehensive scheme designed to govern all aspects of the relationship of the parties".

[35] The factual nature of the dispute is that Burgess lost his position in the Ontario public service. Both the Crown and Burgess attach labels to the loss of position. The Crown calls it a release from a surplus position. Burgess claims that this description is a disguise; the reality is that the Crown needed a scapegoat and, therefore, wrongfully dismissed him. The labels of 'release' and 'wrongful dismissal' are legal labels, not necessarily accurate factual descriptions. As such, they are not determinative of the inquiry into the nature of the dispute: see Weber at p. 953 S.C.R. and Regina Police Assn. at p. 373 S.C.R. All that can be said at this juncture is that the nature of the dispute is the discharge or the termination (to use legally neutral words) of Burgess from his public service employment.

[36] Turning to the second component of the Weber analysis, the question becomes: do the purpose, structure and jurisdiction of the PSA and Reg. 977 suggest that the courts should defer to the PSGB in this matter? In my view, the answer to this question is clear: there is very little in the legislative scheme to suggest that the PSGB is better suited than the courts to hear Burgess' complaint. I say this for several reasons.

[37] First, as to the claim of wrongful dismissal advanced by Burgess, the courts must surely be considered an expert tribunal. As to the assertion of release advanced by the Crown, there is, as the motions judge recognized, a gap or lacuna or silence in the legislative scheme concerning the adjudicative process. Reg. 977 specifically assigns jurisdiction to the PSGB with respect to grievances relating to removals and dismissals for cause. Reg. 977 also specifically denies jurisdiction to the PSGB with respect to grievances relating to releases for certain designated positions. However, Reg. 977 is silent about the category of public servant represented by Burgess, a public servant released for reasons of surplus or shortage of work or funds. It is difficult for me to see how the legislature's silence on this matter, especially in the context of the legislature addressing all other categories of public servants, can support the Crown's position that the courts should defer to w hat could only be described, at its highest, as an implied jurisdiction in the PSGB. In fact, I think that the legislative framework suggests the opposite conclusion; by specifically assigning two categories of grievance to the PSGB, the silence respecting the release category suggests that the legislature was of the view that the grievance procedure was not appropriate for it.

[38] Second, and related to the first reason, I find it unsettling that the Crown would formally notify Burgess that he was being released pursuant to s. 22(4) of the Public Service Act, but then say, for purposes of its jurisdictional argument, that Burgess' claim raises a potential issue of wrongful dismissal which should be heard by the PSGB. Given that it would be a simple matter for the legislature to directly assign jurisdiction to the PSGB for grievances relating to releases for reasons of surplus or lack of work or funds, I do not think that the courts should infer such an assignment based on a Crown characterization that is the opposite of the one it used when it told Burgess that he was no longer going to be a Crown employee.

[39] Third, with respect to the categories of termination covered by the PSA and Reg. 977, the jurisdiction of the PSGB is not mandatory. Section 36(1) of Reg. 977 provides that a grievor "may" apply to the PSGB. This is not the obligatory wording, anchored in the word "shall" and usually coupled with a strong privative clause, that is the hallmark of many legislative schemes relating to specialist tribunals.

[40] In Danilov, supra, this court considered the statutory grievance procedure created by the federal Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"), which established a non-mandatory grievance procedure. A federal public servant was terminated without notice. He sought to bring an action in the courts. This court permitted the action to proceed, saying at p. 36 C.C.E.L., p. 132 O.A.C.:

Finally, where as here the grievance procedure is available not because it is incorporated into a collective agreement but because of the PSSRA itself, we do not think Parliament intended that the grievance procedure have exclusive jurisdiction over grievable disputes. As a matter of statutory interpretation, the PSSRA does not provide that this grievance procedure is to be a mandatory one meant to exclude the employee's right to sue. Rather, it is a process which, in the language of the legislation, the employee "is entitled" to use. But the employee may also access the courts.

[41] In another recent case dealing with the PSSRA, Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373, [1999] N.S.J. No. 448 (C.A.) ("Pleau"), Cromwell J.A. engaged in a comprehensive and thoughtful discussion of St. Anne-Nackawic, Weber and many other authorities. He cited Danilov with approval and said, at para. 74 [at pp. 396-97 D.L.R.]:

If the provisions of the P.S.S.R.A. and the other fora of administrative redress are considered, there exists a quite comprehensive scheme for dispute resolution outside the courts. However, the absence of a provision requiring (as opposed to entitling) recourse to the grievance procedure and the inability to submit the dispute to adjudication in my mind make this scheme, in relation to such disputes, entitled to considerably less deference than those under consideration in Weber and related cases.

[42] In my view, the grievance regime established by the PSA and Reg. 977 is much closer to the PSSRA regime in Danilov and Pleau than to the various statutory regimes in cases like St. Anne-Nackawic, Weber and Regina Police Assn. In the latter group of cases, the adjudicative regimes are comprehensive, mandatory and final. The grievance procedure under the Public Service Act, on the other hand, is partial, optional and, perhaps, not final because of the absence of a privative clause. These descriptive adjectives do not suggest, in my view, that the courts should defer to the jurisdiction of the PSGB.

[43] Fourth, a recent decision of the Supreme Court of Canada counts strongly against judicial deference to the jurisdiction of the PSGB in the present case. In Wells v. Newfoundland, supra, the Supreme Court of Canada engaged in an important discussion of the status, role and rights of Canadian public servants. Speaking for a unanimous court, Major J. said, at p. 213 S.C.R.:

[T]he common law views mutually agreed employment relationships through the lens of contract. This undeniably is the way virtually everyone dealing with the Crown sees it. While the terms and conditions of the contract may be dictated, in whole or in part, by statute, the employment relationship remains a contract in substance and the general law of contract will apply unless specifically superceded by explicit terms in the statute or the agreement.

(Emphasis added)

See also: Danilov, supra.

[44] For many years, the general law of contract has provided employees the right of access to the courts to challenge the termination of their employment on grounds of breach of contract. That right can be diminished or even abrogated entirely by legislation or by the contract of employment. However, as Major J. emphasized in Wells v. Newfoundland, the diminution or abrogation of this long-standing right requires "explicit terms".

[45] In the present case, the legislature has established a statutory grievance procedure for certain categories of termination of employment for Ontario public servants. However, for other categories of termination of employment, including the release of Burgess pursuant to the 'surplus' component of the Public Service Act, there are simply no "explicit terms", either granting jurisdiction to the PSGB or removing the jurisdiction of the courts. There is only silence. In the absence of an explicit term, as Wells v. Newfoundland strongly suggests, Burgess' right of access to the courts should be preserved. I conclude, therefore, that the nature of Burgess' claim and the legislative scheme of the PSA and Reg. 977 do not establish a reason for the courts to defer to the PSGB.

E. Disposition

[46] I would dismiss the appeal with costs.

Appeal dismissed.

Notes

Note 1: I note in passing that the PSGB has heard grievances brought by public servants who have been purportedly released pursuant to s. 22(4) of the Public Service Act: see, for example, Trudell and the Ministry of Agriculture and Food (1990), Board File No. P/0006/90 (PSGB). In such cases, the grievance has been initiated by the public servant and the Crown has not objected to the jurisdiction of the PSGB. Moreover, the PSGB has viewed the grievance as one requiring consideration of both s. 22(3) (dismissal for cause) and s. 22(4) (release) of the PSA.