Alberta Union of Provincial Employees et al. v. Alberta et al., (2002) 312 A.R. 9 (CA)

• Judge: Berger, Costigan and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Monday September 09, 2002
• Citations: (2002), 312 A.R. 9 (CA);2002 ABCA 202

AUPE v. Alta. (2002), 312 A.R. 9 (CA);

    281 W.A.C. 9

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. SE.037

Alberta Union of Provincial Employees, Jason Gibson (appellants/respondents on cross-appeal/applicants) v. The Government of Alberta (respondent/cross- appellant) and John Usselman, Level II Designated Officer (respondent)

(0003-0474-AC; 0003-0513-AC; 2002 ABCA 202)

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

Alberta Court of Appeal

Berger, Costigan and Paperny, JJ.A.

September 9, 2002.

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, in a judgment reported 272 A.R. 69, 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. The province cross-appealed the trial judge's decision to adjudicate the Charter issues after finding that the attacked decisions were not subject to judicial review. Gibson appealed the Charter findings.

The Alberta Court of Appeal dismissed the province's cross-appeal and allowed Gibson's appeal. Gibson did not breach his duty of fidelity. The employer imposed limitations violated freedom of expression under s. 2(b) of the Charter and were not saved by s. 1.

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 - The trial judge 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 - The Alberta Court of Appeal held that the employer-imposed limitations violated s. 2(b) and were not reasonable limits prescribed by law under s. 1 where Gibson did not breach his duty of fidelity - Gibson did not engage "in sustained and highly visible attacks on major government policies" - Gibson's criticisms were not opposite in interest to his employer and did not adversely affect his ability to perform his public functions or the public's perception of his ability - See paragraphs 24 to 34.

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:

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 20].

Vyas v. University of Calgary (1998), 221 A.R. 302 (Q.B.), refd to. [para. 21].

Kaplan v. Canadian Institute of Actuaries (1994), 161 A.R. 321 (Q.B.), affd. (1997), 206 A.R. 268; 156 W.A.C. 268 (C.A.), refd to. [para. 22].

Falk v. Calgary Real Estate Board Cooperative Ltd. (2000), 265 A.R. 60 (Q.B.), refd to. [para. 22].

International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 720 v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers et al. (2000), 272 A.R. 1 (Q.B.), refd to. [para. 22].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 22].

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161, refd to. [para. 24].

Authors and Works Noticed:

Alberta Government Code of Conduct and Ethics, arts. 15(1), 16 [para. 27].

Tarnopolsky, W.S., and Beaudoin, G.A., The Canadian Charter of Rights and Freedoms: Commentary (1982), generally [para. 22].

Counsel:

G.B. Gawne, for the appellants/respondents on cross-appeal/applicants;

D.J. Ross, Q.C., for the respondent/cross-appellant.

This appeal was heard on May 7, 2002, before Berger, Costigan and Paperny, JJ.A., of the Alberta Court of Appeal.

On September 9, 2002, Berger, J.A., delivered the following memorandum of judgment for the Court of Appeal.