Supreme Court of Canada

Langlois v. Québec (Ministère de la Justice), [1984] 1 S.C.R. 472

Date: 1984-06-07

Lise Langlois, Commission de la fonction publique Appellants;

and

Ministère de la Justice du Gouvernement du Québec, Marc-André Bédard, Roger Labelle Respondents;

and

Ronald Lapointe Mis en cause;

and

Ministre de la Fonction publique Mis en cause.

File No.: 16908.

1984: March 14; 1984: June 7.

Present: Beetz, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Administrative law—Civil service—Discipline—Assignment—Appeal to Commission de la fonction publique—Jurisdiction of the Commission—Whether assignment or transfer of a civil servant may constitute disciplinary action—Civil Service Act, 1978 (Que.), c. 15, ss. 29, 80, 93, 97.

A civil servant, a supervisor and section chief in a house of detention, was assigned to another house of detention where he would be doing the same work. He alleged that this decision was in fact an unjustified disciplinary action as to him, and appealed to the Commission de la fonction publique. The Commission first refused and then agreed to hear the appeal to determine whether the facts indicated that there had been disciplinary action, which would give it jurisdiction to hear the case on the merits. Respondents, arguing that the Commission had no jurisdiction to hear an appeal from an administrative decision such as an assignment or transfer, applied to the Superior Court for a writ of evocation. The Superior Court dismissed their motion, but the Court of Appeal reversed the judgment and authorized that the writ be issued. This appeal is to determine whether, under the Civil Service Act, the assignment or transfer of a civil servant can constitute disciplinary action and so be a basis for the right of appeal to the Commission de la fonction publique conferred by that Act.

[Page 473]

Held: The appeal should be allowed.

Under section 97 of the Civil Service Act, the Commission had jurisdiction to hear and decide any appeal brought by a civil servant in respect of whom disciplinary action other than dismissal or suspension was taken. The phrase "disciplinary action" in s. 97 is wide, not limited in any way and must include any measure which actually constituted disciplinary action, whatever it might be. When it is alleged that an assignment constituted disciplinary action, it was essential for the Commission to hear the evidence and determine whether such a measure in fact constituted disciplinary action, in which case the Commission had jurisdiction to hear the appeal on the merits, or whether it constituted merely an administrative action, in which case the Commission had no jurisdiction to proceed. An employer cannot deprive a civil servant of his right of appeal by labelling a disciplinary action an assignment or transfer. In the case at bar, the Commission did not exceed its jurisdiction and the writ of evocation should be denied.

Jacmain v. Attorney General of Canada, 1977 CanLII 200 (SCC), [1978] 2 S.C.R. 15, applied; Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and Service Employees’ Union, Local 210 (1974), 1974 CanLII 2339 (ON LA), 7 L.A.C. (2d) 280; Entreprises de nettoyage d’édifices Ltée v. Union des employés de service local 298, C.T.C.-F.T.Q., [1974] S.A.G. 2139, referred to.

APPEAL from a judgment of the Quebec Court of Appeal[^1], which reversed a judgment of the Superior Court[^2] denying a writ of evocation. Appeal allowed.

François Aquin, for the appellants.

Jean-Yves Bernard, for the respondents and the mis en cause the ministre de la Fonction publique.

English version of the judgment of the Court delivered by

CHOUINARD J.—The question is whether under the Civil Service Act, 1978 (Que.), c. 15, the assignment of a civil servant can, depending on the circumstances, constitute disciplinary action and

[Page 474]

so give rise to the right of appeal to the Commission de la fonction publique conferred by that Act.

Assignment is dealt with in s. 80 of the Civil Service Act:

80. The assignment of a civil servant from one position of the class to which he belongs to another position in the same class within the same department or agency is made in writing by the deputy minister or by the chief executive officer of the agency to whom he is responsible.

It differs from a transfer in that in the latter case the civil servant is given a position of the same class but in another department or agency (s. 81).

The mis en cause Lapointe is a supervisor and section chief at the Cowansville house of detention.

On April 3, 1980, respondent Labelle informed him by mail that he was being transferred to the Sorel house of detention and would continue doing the same work.

The mis en cause appealed this decision to the Commission de la fonction publique.

He alleged that the decision was unlawful, as in unjustly removing him from his position it was in fact [TRANSLATION] "an unjustified disciplinary action" as to him.

The Commission initially held that it had no jurisdiction, telling the mis en cause that there was no appeal on questions involving assignments or transfers.

The Commission later changed its mind, and on July 18, 1980 rendered a decision that it would hear the mis en cause to determine whether the facts indicated that there had been disciplinary action, which would give it jurisdiction to hear the case on the merits.

Respondents then submitted a motion seeking authorization to exercise a recourse in evocation, but this motion was dismissed by the Superior Court.

[Page 475]

In its unanimous decision of October 5, 1981 the Court of Appeal reversed the Superior Court and authorized the issuance of the writ. Hence this appeal.

Chapter III of the Act, titled "The Commission de la fonction publique", Division II, titled "Functions and Powers of the Commission", contains s. 29, which gives the Commission jurisdiction to hear and decide appeals brought by members of the civil service staff in the types of proceeding mentioned:

29. The Commission hears and decides every appeal brought by a member of the civil service staff in accordance with section 64, 78, 87 or 97, in the matter of classification, demotion or removal for professional incompetence, dismissal, suspension or discipline, as well as in the case where a civil servant is temporarily relieved of his duties, unless a collective agreement confers the jurisdiction in that matter on another person. The Commission hears and decides every appeal brought by a civil servant in the matter of promotion in accordance with section 77.

Disciplinary matters are dealt with by s. 97, which is to be found in Chapter VII, titled "Management of the Civil Service", Division VI, titled "General Conditions of Service and Discipline":

97. Every deputy minister or civil servant who is dismissed or suspended, in respect of whom other disciplinary action is taken, or who is provisionally relieved of his duties, may appeal to the Commission within thirty days after the sending of a notice informing him of the measure imposed. However, in the case of the dismissal of a civil servant, only a permanent civil servant may exercise this recourse.

The Commission may confirm, quash or amend the disciplinary action or the decision provisionally relieving a civil servant of his duties.

According to respondents, "disciplinary action" can only be understood to mean disciplinary actions specified by the ministre de la Fonction publique by regulation, as authorized by s. 93:

93. The Ministre de la fonction publique may, by regulation, establish standards of conduct and discipline and the disciplinary actions that may be taken in respect of the civil service staff. Such a regulation may also

[Page 476]

enact by whom and on what conditions a member of that staff may be provisionally relieved of his duties.

This led to the adoption of the [TRANSLATION] Regulations regarding standards of conduct and discipline in the civil service and provisional relief of duties, which were approved by the Conseil du trésor on March 27, 1979, pursuant to s. 5 of the Act. It is C.T. 118104, s. 12 of which, in Division IV, titled [TRANSLATION] "Penalties", provides:

[TRANSLATION] 12. Disciplinary action may consist of a reprimand, suspension or dismissal, depending on the nature and seriousness of the misconduct for which it is imposed.

In my opinion, this argument by respondents must be dismissed forthwith. As appellants correctly submitted, these regulations [TRANSLATION] "cannot have the effect of limiting the content of the phrase 'other disciplinary action' in s. 97 of the Civil Service Act, nor of limiting the scope of the right of appeal to this Commission conferred by the Act".

If a superior regardless of the regulations takes a disciplinary action not authorized by the regulations, such as imposing a fine, there is all the more reason for the penalized employee to be able to appeal to the Commission de la fonction publique. The very fact that the penalty is unauthorized may constitute a sufficient ground for the Commission to quash or vary it.

The phrase "disciplinary action" in s. 97 is wide, not limited in any way and must include any measure which actually constitutes disciplinary action in fact, whatever it may be.

However, this does not settle the principal question of whether an assignment or a transfer may constitute disciplinary action within the meaning of s. 97. Like the writers cited below, I shall henceforth use the word "transfer" as if it meant both "assignment" and "transfer".

It is not inconceivable that the Act provides that a transfer will always be regarded as an administrative measure, whatever its cause. An employer may well, in a case of misconduct, decide to transfer an employee rather than dismiss him outright,

[Page 477]

so that he will no longer be in a setting in which he will be inclined to repeat the offence.

On the other hand, it is also conceivable that "disciplinary action" may refer to any measure whatever, including a transfer, taken to punish misconduct.

In his Traité de droit administratif, t. I, P.U.L., Québec, 1974, René Dussault wrote at pp. 370‑71:

[TRANSLATION] A transfer is generally defined as a shift from one position to another, with no difference in pay, at the discretion of management, "which may in theory do so at any time and as often as operational requirements make it necessary. However, management should comply with the legal requirements regarding employees' abilities" (Jacques Magnet, "Le fonctionnaire et l'administration", in Traité de science administrative, ed. Georges Langrod, Bruxelles, 1966, p. 413). A transfer makes mobility possible within the civil service. However, it is to be distinguished from advancement and promotion, in that it involves no increase in pay, and especially in that it is entirely within the discretion of management. The employee has a duty to accept it, or he will be subject to disciplinary penalties that may extend to dismissal.

Similarly, in La fonction publique canadienne et québécoise, P.U.L., Québec, 1973, Patrice Garant wrote at p. 327:

[TRANSLATION] No one disputes that the government has the power, in performing its function of service to the public, to organize a suitable distribution of duties between public officers.

He added, at p. 328:

[TRANSLATION] Since the reform, a transfer or shift has become a normal measure, since it is in accordance with the logic of a system which tends to encourage "a very desirable interdepartmental mobility".

However, the French writers referred to by Dussault in his Traité, cited above, distinguish between a transfer made in the interests of the organization, which constitutes an administrative measure, and a transfer imposed as a penalty for misconduct, which constitutes a disciplinary measure and is subject to the rules applicable to disciplinary measures and the procedures designed to protect civil servants.

[Page 478]

The Traité de droit administratif, 6th ed., L.G.D.J., 1975, of André De Laubadère, states at p. 70, No. 104:

[TRANSLATION] 104.—Transfers.—(Bibl.—P.-M. Juret, Les mutations de fonctionnaires, R. adm. 1962, 147).—Transfers are changes of employment or residence imposed on civil servants unilaterally by management. Such changes may have two quite different meanings: when they are made to penalize misconduct by the civil servant, they constitute disciplinary action (job transfer), which is naturally subject to the provisions governing disciplinary action (infra, Nos. 166 et seq.); however, a job transfer may also be made by management in the interests of the organization: in that case it constitutes an administrative measure which does not fall within disciplinary procedure, and which the statute (s. 48) makes subject to certain administrative rules only.

Jean-Marie Auby and Robert Ducos-Ader, Droit administratif 4th ed., Précis Dalloz, 1977, write at pp. 195-96:

[TRANSLATION] 3. Disciplinary action may be identified by the reason for which it is imposed, consisting in the existence of misconduct requiring such action.—The courts have tried to preserve the punitive aspect of disciplinary action, for which there must have been misconduct. This has the following consequences:

(b) administrative measures which are taken for disciplinary reasons without following the requirements of disciplinary procedure constitute disguised disciplinary action and are quashed by the courts, because they are a means of avoiding the guarantees given to civil servants and constitute an abuse of procedure.

Additionally, the Traité pratique de la fonction publique, t. I, 2nd ed., L.G.D.J., 1963, by Alain Plantey, states at pp. 332-33:

[TRANSLATION]

2.—DEFINITION OF DISCIPLINARY ACTION

925.—The courts have made a special effort to define the parameters of the concept of disciplinary action, as distinct from administrative measures, and to determine the actual meaning of a decision which may at times be disguised in administrative form.

926.—There is a twofold distinction between the two types of measures: first, there is a limited list of disciplinary actions, while the choice of administrative measures is not limited; second, disciplinary procedure only

[Page 479]

applies in the first case; and yet, through negligence or abuse of power, the administrative authority frequently is guilty of a regrettable confusion between a disciplinary proceeding and administrative necessity.

929.—In actual fact, it is the judge who assesses in accordance with the evidence in the record whether there was a disciplinary intent in the disputed measure.

Palmer speaks of "disciplinary transfers" (Collective Agreement Arbitration in Canada, 2nd ed., Toronto, Butterworths, 1983, p. 253, note 116).

In his text cited above, Professor Garant writes at p. 296:

[TRANSLATION] Arbitration decisions also deal with certain demotion measures taken for disciplinary reasons. It would not appear that denying advancement may be used as a disciplinary measure; as regards transfer from one position to another and extension of the probation period, however, the courts have not yet finally decided on these points.

In the decision which is the subject of the appeal, the Commission de la fonction publique referred to certain decisions in which a transfer was categorized as a disciplinary action and treated as such. I was only able to locate two of these decisions in the reports available.

Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and Service Employees' Union, Local 210, 1974 CanLII 2339 (ON LA), 7 L.A.C. (2d) 280, a decision of November 7, 1974, concerned a nurse who had mistakenly placed in a tube labelled with the name of one patient the blood taken from another patient. On another occasion, as the result of a mistake in identity, she had taken blood from the wrong patient. She was transferred to a position in which she would no longer work in the blood bank. The arbitrator held the measure was justified and dismissed the grievance.

In Entreprises de nettoyage d'édifices Ltée v. Union des employés de service local 298, C.T.C. -F.T.Q., a decision of November 26, 1974, [1974] S.A.G. 2139, a cleaning employee in a branch of the Canadian National Bank was transferred—reassigned, as the arbitrator said—to another

[Page 480]

branch following a complaint by the authorities at the first branch. The arbitrator wrote:

[TRANSLATION] This was in fact a disciplinary measure imposed by the company as the consequence of a complaint by the CNB on July 2.

The employer had the burden of showing the reasons for the disciplinary action, which it did not do to the satisfaction of the arbitrator, who directed that the employee be reinstated in her previous position.

While there is very little case law directly applicable to the proceeding at bar, there is nonetheless an analogy between this case and Jacmain v. Attorney General of Canada, 1977 CanLII 200 (SCC), [1978] 2 S.C.R. 15.

I take the summary of facts and proceedings from the headnote of the decision, inserting the applicable legislation:

In May 1973 appellant joined the office of the Commissioner of Official Languages as a division chief in the Complaints Service. This involved a probationary period since his previous employment in the public service had been with the Department of National Revenue. Under s. 28 of the Public Service Employment Act, R.S.C. 1970, c. P-32, an employee on probation may be rejected and in February 1974 appellant was given notice in writing of his rejection.

28. (3) The deputy head may, at any time during the probationary period, give notice to the employee and to the Commission that he intends to reject the employee for cause at the end of such notice period as the Commission may establish for any employee or class of employees and, unless the Commission appoints the employee to another position in the Public Service before the end of the notice period applicable in the case of the employee, he ceases to be an employee at the end of that period.

Appellant presented a grievance under s. 90 of the Public Service Staff Relations Act, R.S.C. 1970; c. P-35, but was unsuccessful. Then under s. 91 of the Act he referred the matter to adjudication. The employer disputed the jurisdiction of the adjudicator on the basis that rejection during the probationary period did not constitute discharge. Under s. 91(1)(b) the adjudicator had jurisdiction only if the matter involved was "disciplinary action resulting in discharge, suspension or a financial penalty".

[Page 481]

91. (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 him of a provision of a collective agreement or an arbitral award, or

(b) disciplinary action resulting in discharge, suspension or a financial penalty,

and his grievance has not been dealt with to his satisfaction, he may refer the grievance to adjudication.

The adjudicator however held that he had jurisdiction to examine the reasons for rejection to determine whether the employer had, under the guise of rejection, taken what was in reality disciplinary action, and finally ruled that appellant was not in fact rejected during his probationary period and that he was discharged without sufficient reason. The grievance was allowed and reinstatement ordered. The employer then referred the matter to the Public Service Staff Relations Board, which found that the adjudicator had not erred in law or in jurisdiction. On further proceedings under s. 28(1)(a) of the Federal Court Act, 1970-71-72 (Can.), c. 1, the Federal Court of Appeal held that the adjudicator did not have jurisdiction to weigh the cause of rejection.

The appeal was dismissed by this Court by a majority of six to three.

Four of the majority judges considered that it was in fact a rejection during the probationary period and the adjudicator lacked jurisdiction. In view of this finding on the merits, "I do not have to decide", de Grandpré J. wrote at p. 38, "whether the adjudicator has jurisdiction when the rejection is clearly a disciplinary action". He added: "The question remains open".

What makes this decision relevant to the case at bar, however, is that Pigeon and Beetz JJ., who were also among the majority, decided this point as did the three minority judges.

In the view of these two majority judges and the minority, the adjudicator unquestionably had jurisdiction if the discharge was disciplinary, even during the probationary period. Additionally, he had jurisdiction to hear the evidence to determine whether it was a case of a rejection during the probationary period pursuant to s. 28 of the Public

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Service Employment Act or a disciplinary discharge within the meaning of s. 91 of the Public Service Staff Relations Act. Where they differed was that, for the first group, this was a rejection and the adjudicator had accordingly exceeded his jurisdiction by finding that there were insufficient grounds for it and quashing it, whereas for the second group it was a discharge and the adjudicator had complete authority to quash it because it was without justification.

Pigeon J. wrote at p. 40:

At the hearing, counsel for the Attorney-General properly conceded that the right of a probationary employee to launch a grievance against a disciplinary dismissal could not be ousted by making such dismissal in the form of a rejection under s. 28 of the Public Service Employment Act. This means that, on a grievance being filed, the Adjudicator had jurisdiction to inquire whether the rejection was in fact a dismissal as alleged by the grievor.

And at page 42:

Just as I cannot agree that the employer can deprive an employee of the benefit of the grievance procedure by labelling a disciplinary discharge a rejection, I cannot agree that an adjudicator may proceed to revise a rejection on the basis that if he does not consider it adequately motivated, it must be found a disciplinary discharge.

Dickson J. wrote for the minority at p. 20:

The issue which this appeal brings squarely to the fore is whether the protection against disciplinary discharge extends to probationary employees. In terms, the answer is undoubtedly in the affirmative.

And at page 21:

Counsel for the employer before this Court did not dispute that the adjudicator was entitled to inquire into the facts initially to determine whether the appellant's discharge was a disciplinary matter, or a rejection for cause during a probationary period. It is now common ground that it was, indeed, incumbent upon the adjudicator to hear evidence and decide whether the employee ceased to be an employee due to disciplinary discharge, in which event the adjudicator had jurisdiction to go on and consider the merits, or whether employment terminated as a result of rejection for cause, in which event he did not have jurisdiction.

[Page 483]

Thus, in the opinion of five judges of this Court, whereas during his probationary period an employee may be rejected without such administrative action being subject to adjudication, an adjudicator has jurisdiction under the Public Service Staff Relations Act to examine whether the action was in fact a rejection or a disciplinary discharge, and to proceed in the latter case.

If these principles are applied in the case at bar appellants must win their case.

I realize that it will sometimes be difficult to make the determination. The same is true between the rejection during the probationary period and the disciplinary discharge, and in Jacmain Dickson J. says the following in this regard, at p. 20:

Sometimes the act of an employee will give rise to disciplinary action which may, or may not, then or at a later date, lead to dismissal. Rejections for cause will be for reasons otherwise than disciplinary. The fact that the employer may have some cause for complaint about the employee does not, by that fact alone, transform what would otherwise be a disciplinary discharge into a rejection for cause. The dividing line between the two may be blurred, but it is a line which the adjudicator must draw and the matter is not concluded by the employer characterizing the severance as rejection for cause.

Paraphrasing a passage cited above from Pigeon J., I cannot agree that the employer can deprive a civil servant of the right of appeal by labelling a disciplinary action an assignment or transfer.

I concur in the following passages from the decision of the Commission:

[TRANSLATION] Section 97 of the Act determines the jurisdiction of the Commission; section 93 empowers the Minister, as the person exercising executive authority, to determine the penalties which he will allow managers to impose on employees. Section 12 of the Regulations regarding standards of conduct and discipline in the civil service and provisional relief of duties is in accordance with the powers conferred by the Act on the Minister, but that section does not limit the powers of the Commission. That section may not mention a reprimand as a disciplinary action, but this does not prevent the Commission from hearing appeals on reprimands under sec-

[Page 484]

tion 97, which gives a remedy to any civil servant in respect of whom other disciplinary action is taken.

In the view of the Commission, if the action at issue is really an administrative measure, it does not have jurisdiction, but if the evidence established that this was an indirect disciplinary action, it has jurisdiction under section 97, which states that a civil servant may appeal to the Commission from any other disciplinary action, other than a dismissal or suspension. However, the Commission considers that in order to determine whether it has jurisdiction, it is essential for it to hear the evidence.

In my view, with respect, the Commission did not exceed its jurisdiction in deciding to hear the evidence which the mis en cause Lapointe wished to submit to it in order to determine whether the latter's assignment in fact constituted disciplinary action, and whether it had jurisdiction to hear his appeal on the merits.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court refusing to authorize the issuance of the writ of evocation. No award as to costs should be made in this Court, where the issue was between a governmental commission and one of its members on the one hand and the government on the other.

Appeal allowed.

Solicitors for the appellants: Geoffrion, Prud'homme, Montréal.

Solicitors for the respondents and the mis en cause the ministre de la Fonction publique: Roy, Poulin & Associés, Montréal.

[^1]: J.E. 81-980. [^2]: J.E. 81-299.