Fraser v. P.S.S.R.B., 1985 CanLII 14 (SCC), [1985] 2 SCR 455
Neil Fraser Appellant;
and
Public Service Staff Relations Board Respondent.
1985: February 14; 1985: December 10.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the federal court of appeal
Labour relations ‑‑ Public Service ‑‑ Just cause for disciplinary action ‑‑ Strong, sustained public criticism of government policies by public servant ‑‑ Whether or not that criticism impaired effectiveness as public servant.
Judicial review ‑‑ Labour adjudication ‑‑ Just cause for disciplinary action ‑‑ Public servant publicly critical of government policies ‑‑ Whether or not adjudicator erred in law in confirming suspension and discharge ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Appellant, a unit supervisor employed by Revenue Canada at Kingston, publicly criticized the federal government's policies concerning metrification and the constitutional entrenchment of a charter of rights. The criticisms were at first innocuous but soon assumed a vitriolic tone, even to the point of being vicious. Appellant, who was earlier asked by his superior to refrain from making his public criticisms, received two suspensions and finally his discharge when the criticism continued. The Public Service Staff Relations Board decided the first suspension was unjustified but held the second suspension and the discharge to be appropriate. The Federal Court of Appeal dismissed an application for judicial review under s. 28 of the Federal Court Act. At issue here was whether or not the Adjudicator erred in law, for the purposes of s. 28, when he confirmed the discharge of a federal public servant who publicly expressed views highly critical of the Government. Central to this issue was striking an appropriate balance between the right of the individual to speak freely and the duty of the individual, qua public servant, to fulfil his functions properly.
Held: The appeal should be dismissed.
Some speech by public servants on public issues is permitted. An absolute prohibition would not be consistent with the deep‑rooted principles of robust public discussion in a democratic society, with the size of the public service, or with plain common sense. Yet, free speech or expression by the public servant is not an absolute, unqualified value and may be modified by a competing interest.
A job in the public service has two dimensions, one relating to the employee's tasks and performance and the other to the perception held by the public. Appellant's criticisms were correctly characterized as job‑related given the importance and necessity of maintaining an impartial public service. The public interest in both the actual and apparent impartiality of the public service dictates a general requirement of loyalty on the part of the public servant to the Government of Canada, as opposed to the political party in power. In some circumstances it may be appropriate to express opposition to the government's policies. Appellant's sustained and highly visible attacks on major government policy, however, amounted to a lack of loyalty to the Government inconsistent with his duties as an employee of the Government.
Appellant's effectiveness as a public servant was impaired, with respect to both his specific job and his wider capacity as a public servant, by his public statements, notwithstanding no direct evidence to that effect. The rule that there be direct evidence of impairment to perform a specific job is not absolute. When the nature of the public servant's occupation is both important and sensitive and when the form and context of his criticism is extreme, an inference of impairment can be drawn. Direct evidence of impairment of the wider capacity as public servant, too, was not necessarily required. It is open to an adjudicator to infer impairment on the whole of the evidence if there is evidence of a pattern of behaviour which an adjudicator could reasonably conclude would impair the usefulness of the public servant. The substance, form and context of appellant's criticism made the inference of impairment irresistible.
Appellant's conduct leading to the second suspension and discharge did not flow from the first suspension. Rather, that conduct flowed solely from his behaviour concerning the expression of his views.
Cases Cited
Heustis v. New Brunswick Electric Power Commission, 1979 CanLII 26 (SCC), [1979] 2 S.C.R. 768; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227; Trans Mountain Pipe Line Co. v. National Energy Board, 1979 CanLII 4065 (FCA), [1979] 2 F.C. 118; Canadian Lift Truck Co. v. Deputy Minister of National Revenue for Customs and Excise (1955), 1955 CanLII 411 (SCC), 1 D.L.R. (2d) 497 (S.C.C.); Dominion Engineering Works Ltd. v. Deputy Minister of National Revenue (Customs and Excise), 1958 CanLII 63 (SCC), [1958] S.C.R. 652; Hetex Garn A.G. v. Anti‑dumping Tribunal, 1977 CanLII 3101 (FCA), [1978] 2 F.C. 507; Re Ontario Public Service Employees Union and Attorney‑General for Ontario (1980), 1980 CanLII 1845 (ON CA), 31 O.R. (2d) 321, referred to.
Statutes and Regulations Cited
Canadian Bill of Rights.
Canadian Charter of Rights and Freedoms.
Constitution Act, 1867, preamble.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Public Service Staff Relations Act, R.S.C. 1970, c. P‑35, s. 91(1).
APPEAL from a judgment of the Federal Court of Appeal, 1982 CanLII 5207 (FCA), [1983] 1 F.C. 372, dismissing an application made under s. 28 of the Federal Court Act for the review and setting aside of a decision of the Public Service Staff Relations Board. Appeal dismissed.
Maurice W. Wright, Q.C., and Andrew J. Raven, for the appellant.
T. B. Smith, Q.C., and Graham Garton, for the respondent.
The judgment of the Court was delivered by
- The Chief Justice‑‑Does an adjudicator err in law, for the purpose of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 when he or she confirms the discharge of a federal public servant who has expressed views highly critical of the Government? Central to that issue is the proper legal balance between (i) the right of an individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, qua federal public servant, to fulfil properly his or her functions as an employee of the Government of Canada.
I
Facts
On February 23, 1982 the appellant, Mr. Neil Fraser, was discharged from his job with Revenue Canada, Taxation. Prior to his discharge, he had worked for the department for ten years. For the five years immediately preceding the discharge he had been Group head of the Business Audit Division of the Kingston District Office. In this position he supervised four to six auditors and was responsible for selecting large corporations and similar undertakings and auditing their financial statements to determine whether an appropriate amount of taxes had been paid.
On January 18, 1982 the Kingston Whig‑Standard published a letter to the editor written by Mr. Fraser criticizing the Government's policy on metric conversion, a major topic of national debate at that time. On January 25, 1982 Mr. Fraser attended a meeting of the Kingston City Council at which a motion was presented opposing the federal Government's policy on metric conversion. The next day an article appeared in the Kingston Whig‑Standard in which Mr. Fraser's views on mandatory metric conversion were briefly quoted. Beside the article was a photograph of Mr. Fraser holding a placard bearing the slogan: "Your freedom to measure is a measure of your freedom."
Mr. Fraser's supervisor, Mr. Bruce Lowe, Director of the Kingston District Office, decided that Mr. Fraser's activities warranted a disciplinary response. On January 29, 1982 Mr. Lowe suspended him for three days without pay for having "exceeded the bounds of acceptable conduct of a public servant". He was directed "to refrain from any further public statements that criticize a Government department or agency, its officials, or its rules and regulations".
Mr. Fraser was greatly concerned about the implications of this restraint on his freedom of speech. On February 1, 1982 he attended another meeting of the Kingston City Council and expressed these concerns. This time he criticized not only the Government's metric conversion program but also its intention to proceed with a constitutional Charter of Rights and Freedoms. Like its metric policy, the Government's policy concerning a Charter of Rights and Freedoms was a major, highly visible and divisive issue at that time.
On February 5, 1982 Mr. Fraser agreed to appear on an open line radio talk show for a local Kingston radio station. He stated he would not discuss anything related to Revenue Canada but continued to voice his criticisms of the Government's metric and Charter policies. Among other things, he compared Prime Minister Trudeau's manner of governing to that of the dictatorship in Poland.
On February 8, 1982 Mr. Fraser met twice with senior departmental staff who advised him that further disciplinary action would be taken if he did not cease his activities. In between these two meetings he appeared on an open‑line television program. At these meetings he was asked to refrain from further criticisms of Government policy until the matter had been dealt with through normal grievance channels. Senior departmental staff promised to try and expedite the grievance process. Mr. Fraser was not receptive to this proposal. He maintained his position that any criticism he made of Government policy, unrelated to the policies of his department, was consistent with his right to engage in free speech.
At the second meeting on February 8, 1982 Mr. Fraser was given a second suspension, this time for ten days. During the course of this suspension, from February 9th to 22nd, he made a number of local and national media appearances. He criticized, more broadly and more fervently than ever, the policies of the Government. He continued his campaign against British approval of the Government's constitutional proposals and against the Government's alleged abuse of the democratic process. He tried to organize a national pamphlet and telegram campaign to protest these matters. He began to make vicious personal attacks against the Prime Minister and compared him and the Canadian Government to the Nazi regime. He was working, by his own admission, eighteen hours a day in opposition to the Government and its policies.
By letter dated February 22, 1982 Mr. Fraser was advised that as a consequence of the statements he had made to both local and national media he was being discharged from Revenue Canada, Taxation, effective February 23, 1982.
Mr. Fraser grieved his two suspensions and the discharge. These grievances were referred to adjudication pursuant to s. 91(1) of the Public Service Staff Relations Act, R.S.C. 1970, c. P‑35. This section provides an employee covered by the Act the right to refer a grievance to arbitration if the employee has grieved to the final level in the process in relation to, inter alia, "disciplinary action resulting in discharge" and "his grievance has not been dealt with to his satisfaction".
II
Judgments
Public Service Staff Relations Board
Mr. Fraser's grievances were heard by an adjudicator, Deputy Chairman Kates of the Public Service Staff Relations Board. The Adjudicator reviewed carefully and in detail the relevant principles and authorities. He recognized that a line had to be drawn, or a balance reached, between Mr. Fraser's freedom of expression and the desire of the Government to maintain a public service characterized by professionalism and impartiality.
The Adjudicator decided that the first suspension of Mr. Fraser was not justified. It followed Mr. Fraser's first letter to the editor and his fairly passive attendance at one meeting of Kingston City Council. These activities, the Adjudicator concluded, were not deserving of disciplinary action on the part of the employer.
The Adjudicator then considered the second suspension and the discharge. He found that Mr. Fraser's activities after February 8, 1982‑‑prolonged and highly visible criticism of major governmental policies and personalities‑‑jeopardized his ability to perform his duties at his department. Specifically, he found Mr. Fraser's conduct unlikely to instil confidence in a clientele (persons subject to tax audits) that had a right to expect impartial and judicious treatment. In these circumstances, concluded the Adjudicator, some disciplinary action was appropriate. The specific disciplinary measures taken, first a ten‑day suspension and then the discharge, were also appropriate in light of the history of the relations between the parties and Mr. Fraser's express intention to continue his activities critical of the Government.
Federal Court of Appeal
The Federal Court of Appeal dismissed the appeal, taken by Mr. Fraser under s. 28 of the Federal Court Act. See 1982 CanLII 5207 (FCA), [1983] 1 F.C. 372. Pratte J. held that the Adjudicator had made no error of law. He had considered the relevant facts and law. His conclusion that the behaviour of Mr. Fraser constituted misconduct was a question of fact, not reviewable by the Federal Court of Appeal. Furthermore, it was not necessary that there be evidence before the Adjudicator to permit him to make a finding that Mr. Fraser's activities impaired his ability to do his job; this is a finding the Adjudicator is entitled to make, in assessing Mr. Fraser's conduct and its relationship to the requirements of the public service.
Thurlow C.J. and Ryan J. wrote concurring reasons. They do not differ in substance from the reasons of Pratte J.: essentially they reiterate that the Adjudicator considered the relevant factors and legal principles and applied them in a correct fashion.
III
The Issues
There is really only one issue in this appeal: was the Federal Court of Appeal correct in concluding that the Adjudicator did not err in law in reaching his decision?
Mr. Fraser alleges two errors of law. First, he says the Adjudicator erred in holding that his criticism of government policies, unrelated to the work of his department, could form the basis for disciplinary action. Secondly, he contends the Adjudicator erred in finding, without any evidence to that effect, that his effectiveness as a public servant was impaired by his public statements.
Before dealing with these arguments, it is necessary to discuss some general legal considerations, including the principles relevant in a review application under s. 28 of the Federal Court Act.
IV
General Legal Considerations
This appeal is not about certain things. It does not arise under either the Canadian Charter of Rights and Freedoms (which had not been proclaimed when the events in this case arose) or the Canadian Bill of Rights (because no federal law is being challenged). Accordingly, the "freedom of expression" and "freedom of speech" provisions of these watershed documents are not in issue.
That is not to say, however, that this is not, at least in part, a "freedom of speech" case. It is. As Mr. Fraser correctly points out, "freedom of speech" is a deep‑rooted value in our democratic system of government. It is a principle of our common law constitution, inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867.
But it is not an absolute value. Probably no values are absolute. All important values must be qualified, and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of "freedom of speech" as it is for other values. In the present case, the Adjudicator determined that the value of freedom of speech must be qualified by the value of an impartial and effective public service.
Before going on to answer whether the Adjudicator erred in law, it is necessary to understand the principles relating to s. 28(1)(b) of the Federal Court Act. The section provides:
- (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi‑judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
There is no question in this case of failure to observe the principles of natural justice or of any other jurisdictional error. As stated above, Mr. Fraser alleges two errors on the part of the Adjudicator. Both alleged errors raise issues of law and thereby fall within s. 28(1)(b).
It should be noted, at the outset, that the Adjudicator correctly directed himself according to the principles enunciated in Heustis v. New Brunswick Electric Power Commission, 1979 CanLII 26 (SCC), [1979] 2 S.C.R. 768. In that case the Court said, at p. 772:
The question for the adjudicator was whether the employer had just and sufficient cause to discharge the appellant. In deciding this question the adjudicator had three tasks before him. First, did the employee engage in the conduct alleged? Second, was the conduct deserving of disciplinary action on the part of the employer? Third, if so, was the offence serious enough to warrant discharge?
The Adjudicator asked, and answered, these three questions. He clearly followed the correct procedure by adopting the methodology expressed in the foregoing passage.
- As a general principle, a reviewing court, under s. 28 of the Federal Court Act or otherwise, must exercise its powers with caution and sensitivity in the context of grievance adjudication. As this Court stated in Heustis, supra, at p. 781:
There is a very good policy reason for judicial restraint in fettering adjudicators in the exercise of remedial powers. The whole purpose in establishing a system of grievance adjudication under the Act is to secure prompt, final, and binding settlement of disputes arising out of interpretation or application of the collective agreement, or disciplinary action taken by the employer, all to the end that industrial peace may be maintained.
A restrained approach to disturbing the decisions of specialized administrative tribunals, particularly in the context of labour relations, is essential if the courts are to respect the intentions and policies of Parliament and the provincial legislatures in establishing such tribunals: see Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, and Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227.
A reviewing court, whether under s. 28(1)(b) of the Federal Court Act, or under the common law principles of judicial review, should not interfere with the decision of a statutory decision maker in a case such as this unless the statutory decision maker makes a mistake of law, such as addressing his or her mind to the wrong question, applying the wrong principle, failing to apply a principle he or she would have applied, or incorrectly applying a legal principle. See: Trans Mountain Pipe Line Co. v. National Energy Board, 1979 CanLII 4065 (FCA), [1979] 2 F.C. 118 (C.A.), at p. 121; Canadian Lift Truck Co. v. Deputy Minister of National Revenue for Customs and Excise (1955), 1955 CanLII 411 (SCC), 1 D.L.R. (2d) 497 (S.C.C.), at p. 498; Dominion Engineering Works Ltd. v. Deputy Minister of National Revenue (Customs and Excise), 1958 CanLII 63 (SCC), [1958] S.C.R. 652, at p. 656; Hetex Garn A.G. v. Anti‑dumping Tribunal, 1977 CanLII 3101 (FCA), [1978] 2 F.C. 507 (C.A.)
Against the background of these general considerations I turn now to consider the errors of law alleged to have been made in this appeal.
V
Extent of Permissible Criticism of Government by Public Servants
Mr. Fraser's primary submission is that there is a fundamental distinction between job‑related criticism and non‑job‑related criticism. A public servant must exercise restraint, he concedes, where his or her public statements relate to the duties of the position or the policies and programs of the department in which he or she is employed. A governmental employee is as free as a private citizen, however, to criticize government policies unrelated to his or her job or department. Mr. Fraser contends that his statements, critical of the Government's metric conversion program and its constitutional policies, were so remotely related to his duties as a tax audit manager as not to constitute misconduct.
The respondent does not accept the line Mr. Fraser seeks to draw. The respondent agrees that a public servant cannot publicly criticize policies relating directly to his or her job or department, but goes further, contending that a public servant must not criticize other government policies. The reason for this limitation, says the respondent, is the need to preserve the neutrality and impartiality, both actual and perceived, of the public service.
The Adjudicator recognized that a balance had to be struck between the employee's freedom of expression and the Government's desire to maintain an impartial and effective public service. He said:
[It is] incumbent upon the public servant to exercise some restraint in the expression of his views in opposition to Government policy. Underlying this notion is the legitimate concern that the Public Service and its servants should be seen to serve the public in the administration and implementation of Government policies and programs in an impartial and effective manner. Any individual upon assuming employment with the Public Service knows or ought to be deemed to know that in becoming a public servant he or she has undertaken an obligation to exercise restraint in what he or she says or does in opposition to Government policy. Moreover, it is recognized that the exercise of such restraint may very well not be a requirement of employees who work in less visible sectors of Canadian society.
In other words, a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties. It is implicit throughout the Adjudicator's reasons that the degree of restraint which must be exercised is relative to the position and visibility of the civil servant.
In my opinion, the Adjudicator was correct in identifying the applicable principles and in applying them to the circumstances of the case. The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be, to use Mr. Fraser's apt phrase, "silent members of society". I say this for three reasons.
First, our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.
Secondly, account must be taken of the growth in recent decades of the public sector‑‑federal, provincial, municipal‑‑as an employer. A blanket prohibition against all public discussion of all public issues by all public servants would, quite simply, deny fundamental democratic rights to far too many people.
Thirdly, common sense comes into play here. An absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities which no sensible person in a democratic society would want to prohibit. Can anyone seriously contend that a municipal bus driver should not be able to attend a town council meeting to protest against a zoning decision having an impact on her residential street? Should not a provincial clerk be able to stand in a crowd on a Sunday afternoon and protest a provincial government decision cutting off funding for a day care centre or a shelter for single mothers? And surely a federal commissionaire could speak out at a Legion meeting to protest against a perceived lack of federal support for war veterans. These examples, and many others could be advanced, demonstrate that an absolute prohibition against public servants criticizing government policies would not be sensible.
On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. Thus, for example, we have laws dealing with libel and slander, sedition and blasphemy. We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.
A similar type of balancing is required in the present appeal. Public servants have some freedom to criticize the Government. But it is not an absolute freedom. To take but one example, whereas it is obvious that it would not be "just cause" for a provincial Government to dismiss a provincial clerk who stood in a crowd on a Sunday afternoon to protest provincial day care policies, it is equally obvious that the same Government would have "just cause" to dismiss the Deputy Minister of Social Services who spoke vigorously against the same policies at the same rally.
That brings me to the crucial question: did the Adjudicator err in where he drew the line in this case? Mr. Fraser would have a clear line drawn between job‑related and non‑job‑related criticisms. He then asserts that his criticisms fall on the non‑job‑related side of the line. The Adjudicator concluded that Mr. Fraser's criticisms were job‑related. Accordingly, even if there is, as Mr. Fraser contends, a valid distinction between criticism which is job‑related and criticism which is non‑job‑related, the Adjudicator concluded that Mr. Fraser's criticisms were related to his job and that, therefore, the discharge was justified. Mr. Fraser would not succeed even on the test for which he contends.
It is true that Mr. Fraser's major criticisms were directed against two policies, the metric conversion program and the Charter. It is also true that his job and the policies of his department did not bear on these two policies. But it does not follow that the Adjudicator erred in law in finding that Mr. Fraser's criticisms were related to his job. A job in the public service has two dimensions, one relating to the employee's tasks and how he or she performs them, the other relating to the perception of a job held by the public. In my opinion, the Adjudicator appreciated these two dimensions. His discussion on this point is in these terms:
When Mr. Fraser suggested on the Floyd Patterson radio hot‑line program on February 5, 1982 that the Prime Minister in the conduct of the nation would prefer to act in a similar manner to the present regime in Poland, he adversely affected his own ability to conduct the affairs of the department in which he worked. For example, a corporate taxpayer who is selected as the subject of an audit by Mr. Fraser who also assigns the auditor to examine his records might well speculate about the reasons for having been selected and be concerned about the professionalism of the exercise. Surely a relatively influential official of Revenue Canada who publicly and vehemently accuses his employer, the Government of Canada, and the Prime Minister of autocratic and coercive behaviour is unlikely to instill confidence in a clientele that has a right to expect impartial and judicious treatment. And if a taxpayer's reservations were to be perceived by an auditor as an obstacle to an effective investigation, Revenue Canada officials could then rely on the widest and most far‑reaching instruments of search and seizure. In this context Mr. Lowe's concern about the public's perception of Revenue Canada merits some attention. A public servant simply cannot be allowed under the rubric of free speech to cultivate distrust of the employer amongst members of the constituency whom he is obliged to serve. I am satisfied that Mr. Fraser cast doubt on his effectiveness as a Government employee once he escalated his criticism of Government policy to a point and in a form that far exceeded the issues of general public interest that he espoused before February 1, 1982. Or, more succinctly, his incipient and persistent campaign in opposition to the incumbent Government conflicted with the continuation of his employment relationship. Once that situation arose he either had to cease his activities or resign from the position he occupied.
This analysis and conclusion, namely that Mr. Fraser's criticisms were job‑related, is, in my view, correct in law. I say this because of the importance and necessity of an impartial and effective public service. There is in Canada a separation of powers among the three branches of government‑‑the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.
The federal public service in Canada is part of the executive branch of Government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third.
As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.
As the Adjudicator pointed out, there is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service. The benefits that flow from this impartiality have been well‑described by the MacDonnell Commission. Although the description relates to the political activities of public servants in the United Kingdom, it touches on values shared with the public service in Canada:
Speaking generally, we think that if restrictions on the political activities of public servants were withdrawn two results would probably follow. The public might cease to believe, as we think they do now with reason believe, in the impartiality of the permanent Civil Service; and Ministers might cease to feel the well‑merited confidence which they possess at present in the loyal and faithful support of their official subordinates; indeed they might be led to scrutinise the utterances or writings of such subordinates, and to select for positions of confidence only those whose sentiments were known to be in political sympathy with their own.
If this were so, the system of recruitment by open competition would provide but a frail barrier against Ministerial patronage in all but the earlier years of service; the Civil Service would cease to be in fact an impartial, non‑political body, capable of loyal service to all Ministers and parties alike; the change would soon affect the public estimation of the Service, and the result would be destructive of what undoubtedly is at present one of the greatest advantages of our administrative system, and one of the most honourable traditions of our public life.
See paragraphs 10‑11 of c. 11 of MacDonnell Committee quoted in Re Ontario Public Service Employees Union and Attorney‑General for Ontario (1980), 1980 CanLII 1845 (ON CA), 31 O.R. (2d) 321 (C.A.), at p. 329.
There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.
For the reasons outlined, I conclude that the Adjudicator did not err in law and that the Federal Court of Appeal was right in not reversing his decision on this point.
VI
Evidence of Impairment to Perform Job
Mr. Fraser further contends the Adjudicator erred in law by finding that his effectiveness as a public servant was impaired by his public statements, without any evidence to that effect.
It is true the Adjudicator found Mr. Fraser's effectiveness as a public servant was impaired. It is also true there was no direct evidence to this effect before the Adjudicator. There was not, for example, testimony from so‑called "clients" of Revenue Canada (i.e., persons subject to a tax audit) establishing that in their eyes Mr. Fraser's conduct placed his impartiality and judiciousness in doubt. In spite of this, the Adjudicator concluded that Mr. Fraser's activities were job‑related in that they led to "impairment" of his ability to do his job properly. Indeed he found impairment in two senses: first, impairment to perform effectively the specific job because of the inferred effect on clients; secondly, and in a wider sense, impairment to be a public servant because of the special and important characteristics of that occupation.
I do not think the Adjudicator erred on either count. As to impairment to perform the specific job, I think the general rule should be that direct evidence of impairment is required. However, this rule is not absolute. When, as here, the nature of the public servant's occupation is both important and sensitive and when, as here, the substance, form and context of the public servant's criticism is extreme, then an inference of impairment can be drawn. In this case the inference drawn by the Adjudicator, namely that Mr. Fraser's conduct could or would give rise to public concern, unease and distrust of his ability to perform his employment duties, was not an unreasonable one for him to take.
Turning to impairment in the wider sense, I am of opinion that direct evidence is not necessarily required. The traditions and contemporary standards of the public service can be matters of direct evidence. But they can also be matters of study, of written and oral argument, of general knowledge on the part of experienced public sector adjudicators, and ultimately, of reasonable inference by those adjudicators. It is open to an adjudicator to infer impairment on the whole of the evidence if there is evidence of a pattern of behaviour which an adjudicator could reasonably conclude would impair the usefulness of the public servant. Was there such evidence of behaviour in this case? In order to answer that question it becomes relevant to consider the substance, form and context of Mr. Fraser's criticism of government policy.
On this point, the Adjudicator found the evidence overwhelming. The substantive criticism was of two major and, at the time, divisive policies‑‑the metric conversion program and the Charter. In form, the criticism was prolonged and, as the national media focussed its attention on Mr. Fraser, increasingly derogatory in tone. As events developed, his criticism went beyond the two policies mentioned above. He began to impugn and attack the character of the Prime Minister and the integrity of the Government. He did this on a local, then a national, and finally an international basis. He said in Kingston:
We have sold the rights of English‑speaking Quebecers down the drain.
The Federal Government never had any mandate from the people.
We are not killing Jews as they did in Nazi Germany, but Canadians are up against that same insidious mentality today from their government.
He telexed Sir Francis Pym, Leader of the British House of Commons:
You are dealing with a federal government that has a record of broken promises to the Canadian people.
When one examines the substance of the criticisms (two major government policies and the character and integrity of the Prime Minister and Government), the context of those criticisms (prolonged, virtually full time, in public meetings, on radio, on television, in newspapers, local, national, international), and the form of the criticisms (initially restrained, but increasingly vitriolic and vituperative) the Adjudicator's conclusion that Mr. Fraser's ability to perform his own job and his suitability to remain in the public service were both impaired was a fair conclusion. Though no direct evidence of the fact of impairment of capacity is required, here the evidence clearly established circumstances from which the inference of impairment is clearly irresistible. Put simply, although there is not an absolute prohibition against public servants criticizing government policies, Mr. Fraser in this case went much too far.
There is one final matter which needs to be addressed. Mr. Fraser contends that if his course of conduct after the first suspension was improper, which he denies, it must be assessed in light of the fact that the first suspension itself was not justified. In other words, the initial improper action by the employer fed or provoked his later improper conduct, if any.
I see no merit in this argument. Even if one accepts this cause and effect analysis, the whole rationale of most grievance systems, including the federal system applicable in this appeal, is to deal with precisely this type of situation. There was a disagreement there. The employee wanted to speak out. The employer said that he could not. The employee persisted. The employer suspended him. But that is not all the employer did. The employer recognized that the employee was taking a principled stand. Accordingly, the employer offered to expedite the grievance procedure, provided the employee would cease his criticism. The employee refused. He decided to continue, and in fact greatly expanded, his criticism of the Government. In doing this, it seems to me, he voluntarily assumed the risk that his conduct might be adjudged to be sufficient cause for the initial suspension or for subsequent disciplinary action. Indeed, at the outset of his address to the Kingston City Council Mr. Fraser indicated that he appreciated the risks to his job security that he was assuming in appearing before Council but was willing "to pay the price". As it turned out, the Adjudicator held that the first suspension was not waranted but the second suspension and the discharge were warranted. In my opinion, Mr. Fraser's conduct leading to the second suspension and the discharge did not flow from the first suspension. Rather, that conduct flowed solely from his behaviour concerning the expression of his views.
For these reasons, I conclude the Adjudicator did not err by finding that Mr. Fraser's effectiveness as a public servant was impaired by his public statements, without any direct evidence to that effect. And the Federal Court of Appeal was correct in affirming the Adjudicator's decision on this point.
VII
Conclusions
As I have indicated, the Adjudicator considered the relevant factors, applied the governing legal principles, and reached the correct result. He made no error of law. Accordingly, the Federal Court of Appeal, reviewing the Adjudicator's decision under s. 28 of the Federal Court Act, made no error.
I would dismiss the appeal. This is not a case for costs.
Appeal dismissed.
Solicitors for the appellant: Soloway, Wright, Houston, Greenberg, O’Grady and Morin, Ottawa.
Solicitor for the respondent: Roger Tassé, Ottawa.
