Alberta Union of Provincial Employees et al. v. Alberta et al., 2000 ABQB 600

• Judge: Cooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Thursday April 20, 2000
• Citations: 2000 ABQB 600;(2000), 272 A.R. 69 (QB)

AUPE v. Alta. (2000), 272 A.R. 69 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. SE.056

Alberta Union of Provincial Employees, Jason Gibson (applicants) v. The Government of Alberta (respondent) and John Usselman, Level II Designated Officer (respondent)

(Action No. 9903-07782; 2000 ABQB 600)

Indexed As: Alberta Union of Provincial Employees et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Cooke, J.

August 30, 2000.

Summary:

Gibson, a child protection worker, wrote a letter to an opposition M.L.A. and others expressing his opinion and concerns about government policy respecting the provision of social services. Gibson was given a letter of reprimand for breach of fidelity and threatened with disciplinary action, including dismissal, if he made future public com­plaints about his employer rather than resolv­ing his concerns internally. Gibson filed two grievances, one respecting the letter of repri­mand; the other respecting the verbal di­rections from his superior not to voice his concerns publicly. Gibson was instructed that he could not publicly criticize or question any government decision, policy or action in any area. Gibson submitted that the disci­plinary decisions were contrary to his right to freedom of expression under s. 2(b) of the Charter. Both grievances were dismissed. Gibson sought judicial review.

The Alberta Court of Queen's Bench dis­missed the application to quash the first grievance. The policy of not publicly criti­cizing government policy in your own de­partment, without first resolving the matter internally, violated freedom of expression under s. 2(b) of the Charter, but was a rea­sonable limit prescribed by law (s. 1). The court quashed the second grievance. Direc­tions not to publicly criticize policy in de­partments other than your own was, to the extent it was not limited to your own de­partment, not a reasonable limit prescribed by law.

Civil Rights - Topic 1846

Freedom of speech or expression - Limi­tations on - Imposed by employment - A child protection worker (Gibson) wrote a letter to an opposition M.L.A. and others expressing his opinion and concerns about government policy respecting the provision of social services - Gibson was repri­manded for breach of fidelity and threatened with disciplinary action, includ­ing dismissal, if he made future public complaints about his employer rather than resolving his concerns internally - Gibson filed two grievances, one respecting the letter of reprimand; the other respecting the verbal directions from his superior not to voice his concerns publicly - Gibson was instructed that he could not publicly criticize or question any government deci­sion, policy or action in any area - Gibson submitted that the disciplinary decisions were contrary to his right to freedom of expression under s. 2(b) of the Charter - The Alberta Court of Queen's Bench held that the policy of not publicly criticizing government policy in your own depart­ment, without first resolving the matter internal­ly, violated freedom of expression under s. 2(b) of the Charter, but was a reasonable limit prescribed by law (s. 1) - Directions not to publicly criticize policy in depart­ments other than your own was, to the extent it was not limited to your own department, not a reasonable limit pre­scribed by law.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1846].

Crown - Topic 5182

Officials and employees - Duties - Duty of fidelity - [See Civil Rights - Topic 1846].

Labour Law - Topic 9173

Public service labour relations - Discipline and dismissal of civil or public servants - Discipline - Public criticism of employer - [See Civil Rights - Topic 1846].

Cases Noticed:

Leeming, Re, [1981] 1 S.C.R. 129; 34 N.R. 480; 33 N.B.R.(2d) 490; 80 A.P.R. 490, refd to. [para. 20].

Royal Alexandra Hospital v. Alberta Hos­pital Employees Union, Local 41 (1982), 127 D.L.R.(3d) 312 (Alta. Q.B.), refd to. [para. 20].

R. v. Post Office; Ex parte Byrne, [1975] I.C.R. 221, refd to. [para. 22].

Vidyodaya University of Ceylon et al. v. Silva, [1964] 3 All E.R. 865 (P.C.), refd to. [para. 23].

R. v. East Berks Health Authority, [1984] 3 All E.R. 425, refd to. [para. 23].

Gerluk et al. v. Mason et al. (1987), 41 D.L.R.(4th) 569 (Alta. C.A.), refd to. [para. 30].

Fraser v. Public Service Staff Relations Board (1985), 5 L.A.C.(2d) 193, affd. [1983] 1 F.C. 372; 45 N.R. 25 (F.C.A.), affd. [1985] 2 S.C.R. 455; 63 N.R. 161, refd to. [para. 30].

Libman v. Quebec (Attorney General) (1997), 218 N.R. 241 (S.C.C.), refd to. [para. 32].

Irwin Toy Ltd. v. Quebec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 34].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 39].

Simon Fraser University v. Association of University and College Employees, Local 2 (1985), 18 L.A.C.(3d) 361 (Arb.), refd to. [para. 40].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 45].

Statutes Noticed:

Labour Relations Code, S.A. 1988, c. L-1.2, sect. 143(2) [para. 23].

Authors and Works Noticed:

Alberta Government Code of Conduct and Ethics, arts. 15, 16 [para. 52].

Counsel:

G. Brent Gawne (G. Brent Gawne & As­sociates), for the applicants;

David J. Ross, Q.C. (McLennan Ross), for the respondent.

This application was heard on April 20, 2000, before Cooke, J., of the Alberta Court of Queen's Bench, Judicial District of Ed­monton, who delivered the following judg­ment on August 30, 2000.