Callahan v. Newfoundland (Minister of Social Services) et al., (1993) 113 Nfld. & P.E.I.R. 1 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 17, 1991
• Jurisdiction: Newfoundland and Labrador
• Citations: (1993), 113 Nfld. & P.E.I.R. 1 (NFTD)

Callahan v. Nfld. (1993), 113 Nfld. & P.E.I.R. 1 (NFTD);

    353 A.P.R. 1

MLB headnote and full text

Sharron Callahan (plaintiff) v. Elizabeth Marshall, Deputy Minister of Social Services (first defendant) and Linda Black, Keith Griffiths and Barbara Wakeham, a grievance subcommittee appointed pursuant to s. 520 K.1.d. of the Personnel Administration Procedures (second defendant) and Treasury Board (third defendant)

(1990 St. J. No. 3274)

Indexed As: Callahan v. Newfoundland (Minister of Social Services) et al.

Newfoundland Supreme Court

Trial Division

Judicial Centre of St. John's

Puddester, J.

October 8, 1993.

Summary:

Callahan was Director of Youth Correc­tions for the Province of Newfoundland. Callahan was disciplined by way of a four day suspension because of an alleged failure to report certain matters to her superiors. The discipline was imposed by the Deputy Minister of Social Services. Callahan pro­tested the decision on its merits to the As­sistant Deputy Minister as dictated by the grievance procedure. The grievance was denied. Callahan appealed. The appeal was denied by the Deputy Minister (i.e., the person who had imposed the discipline). Callahan appealed. A tribunal consisting of two assistant deputy ministers and the vice-president of a Crown Corporation heard the appeal and recommended that the appeal be dismissed. A committee of the Executive Council of the Newfoundland Government accepted the recommendation and dismissed the appeal. Callahan applied for judicial review to quash the original decision by the Deputy Minister on the basis of a reviewable error on its merits. Callahan also applied to have the tribunal's recommendation and the Exec­utive Council's decision quashed on the basis of substantive error as well as denial of natural justice.

The Newfoundland Supreme Court, Trial Division, dismissed the application.

Administrative Law - Topic 1004

Classification of power or function - General principles - Necessity for classifi­cation - A civil servant applied for certiorari to quash a grievance dismissal - A question arose as to whether the griev­ance procedure had to comply with the rules of natural justice - The Newfound­land Supreme Court, Trial Division, held that the requirement to comply with the duty of fairness did not depend on whether the grievance process was "judicial" or "administrative" - The court stated that the correct approach "is not to attempt to categorize the nature of the decision-mak­ing process ... but rather to recognize that certain procedural standards may in prin­ciple apply to the decision simply by virtue of its being one, ... where ... 'a public body has power to decide any mat­ter affecting the rights ... of any person'" - See paragraph 72.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias, apprehension of - Calla­han, Director of Youth Corrections, was disciplined by way of a four day suspen­sion - The grievance and appeal process instituted by way of the Civil Service Act had three levels - The third level consisted of an investigation and a hearing by a three member board (consisting of two assis­tant deputy ministers and the vice-presi­dent of a Crown corporation) which made a recommendation to the Treasury Board - Callahan applied for judicial review - Callahan submitted that the third level procedure was a quasi-judicial pro­cedure which breached the duty of fairness because of a reasonable apprehension of bias - The Newfoundland Supreme Court, Trial Division, held that the procedure did not present a reasonable apprehension of bias - See paragraphs 265 to 305.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal - Bias - Waiver - [See Adminis­trative Law - Topic 5188 ].

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly and observe rules of natural justice - Callahan, Director of Youth Corrections, was disciplined with a four day suspension - The grievance process had three levels - The third level consisted of an investigation by a three member board consisting of senior civil servants who made a recommendation to the Exe­cutive Committee of the Government (i.e., the Treasury Board) - Callahan's grievance was dismissed - Callahan submitted that the third level decision breached the duty of fairness and applied for judicial review - The question arose as to whether the third level procedure was subject to judi­cial review - The Newfoundland Supreme Court, Trial Division, held that the third level appeal procedure was subject to judicial review - See paragraphs 77 to 115.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - The Newfoundland Supreme Court, Trial Division, held that while a duty of fairness could arise through the performance of an administra­tive function, it was still necessary to determine whether that particular adminis­trative function crossed the threshold giv­ing rise to such a duty - Factors to be considered were: (1) the nature of the decision made; (2) the relationship between the decision-making body and the individ­ual concerned; (3) the effect of the decision on the individual's "rights", and (4) the finality of the decision - See para­graphs 74 and 77.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Callahan, Director of Youth Corrections, was disciplined with a four day suspension - The grievance process had three levels - The third level consisted of an investiga­tion and a hearing by a three member panel consisting of senior civil servants who made a recommendation to the Treas­ury Board - Callahan applied for judicial review - Callahan submitted that the third level procedure was a quasi-judicial pro­cedure which breached the duty of fairness because the members of the panel were senior civil servants - Also, the hearing was before the panel, not the Treasury Board, which actually made the decision on the appeal - The Newfoundland Supreme Court, Trial Division, held the procedure did not contravene the duty of fairness - See paragraphs 206 to 235.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Callahan was disciplined with a four day suspension - The grievance process had three levels - The third level consisted of an investigation and a hearing by a three member panel consisting of senior civil ser­vants who made a recommendation to the Treasury Board - The Treasury Board secretariat reviewed the panel's recom­mendation and submitted a single page analysis - Callahan applied for judicial review - Callahan submitted that the third level procedure breached the duty of fair­ness because she was not allowed to com­ment on the panel's report - Also, there was no legislative basis for the involve­ment of the secretariat - The Newfound­land Supreme Court, Trial Division, held that the procedure did not breach the duty of fairness - See paragraphs 236 to 250.

Administrative Law - Topic 5188

Judicial review - Certiorari - Discretion­ary bars to issue of certiorari - Waiver - Callahan, Director of Youth Corrections, was disciplined with a four day suspension - The grievance process had three levels and was done by civil servants - The third level consisted of an investigation and a hearing by a three member board consist­ing of senior civil servants - Callahan's grievance was dismissed at all levels - Callahan applied for judicial review on the ground of a reasonable apprehension of bias - The Crown submitted that Callahan waived her right to judicial review because she had not raised bias earlier and had participated through the three levels of the grievance process - The Newfoundland Supreme Court, Trial Division, held that Callahan had waived the right to object on the ground of bias - See paragraphs 251 to 264.

Crown - Topic 5241

Officers and employees - Discipline - General - Callahan, Director of Youth Corrections, was disciplined with a four day suspension - The grievance and appeal process had three levels and was done by civil servants - The third level consisted of an investigation and a hearing (i.e., quasi-judicial) by a three member panel consisting of senior civil servants - That panel made a recommendation to Treasury Board - Callahan's grievance was dis­missed at all levels - Callahan applied for judicial review on the basis of the merits of the original decision and its subsequent affirmation - The Crown sub­mitted that the merits or substance of the matter was not amenable to judicial review - The Newfoundland Supreme Court, Trial Divi­sion, held that the merits of the deci­sion were subject to judicial review - See para­graphs 311 to 327.

Crown - Topic 5241

Officers and employees - Discipline - General - Callahan was Director of Youth Corrections - A judge expressed concern about conditions in one of the facilities - A criticism about the staff was expressed by a Crown prosecutor - The administrator expressed concern about a general lack of policy and guid­ance - Callahan failed to inform her superiors - Later, she failed to inform her superiors concerning a breach of policy at the facility and failed to give all of the appropriate files to her replace­ment - Callahan had been warned verbally and in writing of the need to consult with her superiors - Callahan was disciplined with a four day suspension - Callahan applied to have the suspension quashed - The New­foundland Supreme Court, Trial Division, declined to quash the suspension - See para­graphs 329 to 398.

Crown - Topic 5243

Officials and employees - Discipline - Grievance process - [See Administrative Law - Topic 2143 and both Administra­tive Law - Topic 2266 ].

Crown - Topic 5245

Officials and employees - Discipline - Apprehension of bias - [See Administra­tive Law - Topic 2088 ].

Practice - Topic 7035

Costs - Party and party costs - Entitle­ment - The Crown or governmental bodies - Callahan, Director of Youth Corrections, was disciplined with a four day suspension - The grievance and appeal process had three levels and was done by senior civil servants - Callahan's grievance and appeal was dismissed at all levels - Callahan applied for judicial review - There was an interlocutory application involving Cabinet confidentiality in which Callahan success­fully obtained documents - However, the main action for judicial review was dis­missed - The Newfoundland Supreme Court, Trial Division, held that the Crown was entitled to costs in the main action should it choose to have them taxed - Each party would bear their respective costs in the interlocutory matter - See paragraphs 399 to 402.

Cases Noticed:

Thomas v. Mount Saint Vincent University (1986), 73 N.S.R.(2d) 283; 176 A.P.R. 283; 19 Admin. L.R. 145 (T.D.), refd to. [para. 59].

Arghiri v. Manion et al. (1981), 35 N.R. 249 (F.C.A.), refd to. [para. 63].

Simlote v. Council of the Association of Professional Engineers, Geologists and Geophysicists (Alta.) (1983), 45 A.R. 293 (Q.B.), refd to. [para. 63].

Coopers and Lybrand Ltd. v. Minister of National Revenue (1979), 24 N.R. 163 (S.C.C.), consd. [para. 63].

Nicholson v. Haldimand-Norfolk Board of Commissioners of Police et al., [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, consd. [para. 65].

Martineau v. Matsqui Institution Disciplin­ary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 50 C.C.C.(2d) 353; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1, consd. [para. 66].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, consd. [para. 68].

Clarke v. Ontario (Attorney General), [1966] 1 O.R. 539 (C.A.), consd. [para. 79].

Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.), consd. [para. 84].

Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278 (H.L.), consd. [para. 86].

Kane v. Board of Governors of the Uni­versity of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, consd. [para. 90].

Vanek v. University of Alberta, [1975] 5 W.W.R. 429 (Alta. C.A.), consd. [para. 92].

Bown v. Newfoundland (1985), 54 Nfld. & P.E.I.R. 258; 160 A.P.R. 258 (Nfld. C.A.), consd. [para. 93].

Lethbridge v. Newfoundland (Minister of Health) (1992), 103 Nfld. & P.E.I.R. 13; 326 A.P.R. 13 (Nfld. T.D.), dist. [para. 94].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289; 84 C.L.L.C. 14,070; 14 Admin. L.R. 133, refd to. [para. 95].

Trumbley et al. v. Fleming et al. - see Trumbley and Pugh et al. v. Toronto Police Force et al.

Trumbley and Pugh et al. v. Toronto Police Force et al. (1986), 15 O.A.C. 279; 55 O.R.(2d) 570 (C.A.), refd to. [para. 95].

Colledge v. Niagara (Region) Commis­sioners of Police (1983), 40 O.R.(2d) 340 (Div. Ct.), refd to. [para. 95].

Dicks and Newfoundland Association of Public Employees v. Newfoundland (Treasury Board) (1989), 76 Nfld. & P.E.I.R. 353; 235 A.P.R. 353 (Nfld. T.D.), refd to. [para. 95].

Malone v. Ontario (1983), 45 O.R.(2d) 206 (H.C.), refd to. [para. 95].

Zamulinski v. R. (1957), 10 D.L.R.(2d) 685 (Ex. Ct.), refd to. [para. 95].

Mills v. Alberta, [1986] 5 W.W.R. 567 (Alta. C.A.), refd to. [para. 95].

Bateman v. McKay, [1976] 4 W.W.R. 129 (Sask. Q.B.), refd to. [para. 95].

Miljohns v. Board of Education for the Borough of Scarborough et al. (1980), 29 O.R.(2d) 251 (Div. Ct.), refd to. [para. 95].

Trimm v. Durham Regional Police Force et al. (1987), 81 N.R. 197 (S.C.C.), refd to. [para. 95].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [para. 95].

Copeland v. McDonald, [1978] 2 F.C. 815 (T.D.), consd. [para. 119].

Furnell v. Whangarei High Schools Board, [1973] A.C. 660 (P.C.), refd to. [para. 121].

R.D.R. Construction Ltd. v. Rent Review Commission (N.S.) (1982), 55 N.S.R.(2d) 71; 114 A.P.R. 71; 139 D.L.R.(3d) 168 (C.A.), refd to. [para. 123].

R. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida, [1970] 2 Q.B. 417 (C.A.), consd. [para. 128].

Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285, consd. [para. 141].

Nanticoke Ratepayers Association v. Ontario (Environmental Assessment Board) (1978), 19 O.R.(2d) 7 (H.C.), consd. [para. 150].

Saulnier v. Commission de Police du Qué­bec et Communauté Urbaine de Montréal et autres, [1976] 1 S.C.R. 572; 6 N.R. 541, refd to. [para. 150].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, consd. [para. 151].

Webb v. Ontario Housing Corp. (1978), 93 D.L.R.(3d) 187 (Ont. C.A.), consd. [para. 157].

Morgan v. Acadia University et al. (1985), 69 N.S.R.(2d) 109; 163 A.P.R. 109; 15 Admin. L.R. 61 (T.D.), consd. [para. 161].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, consd. [para. 166].

Hannley v. Edmonton (City) et al. (1978), 12 A.R. 473; 91 D.L.R.(3d) 758 (C.A.), refd to. [para. 166].

Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), consd. [para. 168].

R. v. Deputy Industrial Injuries Commis­sioner; Ex parte Jones, [1962] 2 Q.B. 677 (D.C.), consd. [para. 172].

Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; 6 N.R. 440, consd. [para. 173].

Thomas v. Committee of College Presi­dents, [1973] 3 O.R. 404 (Div. Ct.), dist. [para. 213].

Ashbridge Investments Ltd. v. Minister of Housing and Local Government, [1965] 3 All E.R. 371 (C.A.), consd. [para. 226].

Gooliah v. R. (1967), 59 W.W.R.(N.S.) 705 (Man. C.A.), refd to. [para. 267].

MacBain v. Canadian Human Rights Commission et al. (1985), 62 N.R. 117; 22 D.L.R.(4th) 119 (F.C.A.), dist. [para. 274].

Paccar of Canada Ltd. v. Canadian Asso­ciation of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181, refd to. [para. 324].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, c. App. III, generally [para. 274].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 6].

Civil Service Act, R.S.N. 1970, c. 41, sect. 2(a) [para. 26]; sect. 16 [paras. 30, 103, 225]; sect. 16(1) [para. 28].

Department of Social Services Act (Nfld). - see Social Services Act.

Financial Administration Act, S.N. 1973, c. 86, sect. 7(2) [para. 30].

Interpretation Act, R.S.N. 1970, c. 182, sect. 21, sect. 22 [para. 25].

National Energy Board Act, R.S.C. 1970, c. N-6, sect. 22 [para. 151]; sect. 44 [para. 286].

Personnel Administration Procedures Man­ual (Nfld.), sect. 520 J. [paras. 48, 52, 56, 209]; sect. 520 J.1. [paras. 32, 33]; sect. 520 J.1.e. [para. 34]; sect. 520 K. [paras. 48, 51, 52]; sect. 520 K.1. [para. 76]; sect. 520 K.1.a. [paras. 34, 187]; sect. 520 K.1.c. [para. 34]; sect. 520 K.1.d. [paras. 34, 210]; sect. 520 K.1.f. [paras. 34, 39]; sect. 520 K.2.e. [para. 32].

Rules of Court (Nfld.), Supreme Court Rules, generally [para. 325].

Social Services Act, S.N. 1973, c. 31, sect. 4(6) [para. 24].

Statutory Powers Procedure Act, 1971, generally [para. 158].

Authors and Works Noticed:

Evans, J.M., Remedies in Administrative Law (1981), Law Society of Upper Canada Special Lectures: New Develop­ments in the Law of Remedies 429, p. 439 [para. 127].

Counsel:

John F. Dawson, for the plaintiff;

George P. Horan, for the defendants.

This matter was heard on May 17, 1991, by Puddester, J., of the Newfoundland Supreme Court, Trial Division, who filed the following decision on October 8, 1993.