Fraser v. Public Service Staff Relations Board,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Citation: (1985), 63 N.R. 161 (SCC),JE 86-48,63 NR 161,18 Admin LR 72,1985 CanLII 14 (SCC),EYB 1984-142465,19 CRR 152,[1985] 2 SCR 455,[1985] ACS no 71,[1985] SCJ No 71 (QL),9 CCEL 233,23 DLR (4th) 122
• Court: Supreme Court (Canada)
• Date: 10 December 1985

Fraser v. PSSRB (1985), 63 N.R. 161 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Fraser v. Public Service Staff Relations Board

Indexed As: Fraser v. Public Service Staff Relations Board

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

December 10, 1985.

Summary:

Neil Fraser, a supervising income tax auditor with Revenue Canada publicly opposed in an increasingly vitriolic and vituperative manner the policies of the Canadian government on metric measurement conversion and the Canadian Charter of Rights and Freedoms. His attacks included attacks on the character of the Prime Minister. He was suspended from his employment for three days shortly after he began his public attacks. When he persisted in and escalated his attacks, he was suspended again and then fired. He grieved the suspensions and dismissal, claiming that he had the right to criticize his employer provided the criticism was not related to his employment.

The adjudicator found that the first suspension was unwarranted, but upheld the second suspension and the dismissal, finding that Fraser's prolonged and highly visible criticism of major government policies and personalities impaired his ability to perform his employment duties. Fraser appealed.

The Federal Court of Appeal dismissed the appeal.

On Fraser's further appeal the Supreme Court of Canada dismissed the appeal and upheld the adjudicator's decision. The court held that a balance must be struck between an employee's freedom of expression and the government's need for an impartial and effective public service and that the restraint to be exercised by an employee is relative to his position and visibility. Although Fraser's criticism did not relate directly to his department, his criticism was job-related because a person in his position must be seen to be impartial. Further, he was disloyal to his employer by engaging in sustained and highly visible attacks on major government policies.

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada held that a decision of a specialized administrative tribunal, such as a statutory grievance arbitrator, should not be interfered with unless the decision maker made a mistake of law, such as addressing the wrong question, applying the wrong principle, failing to apply a principle which should have been applied, or incorrectly applying a legal principle - See paragraphs 19 to 26.

Civil Rights - Topic 1846

Freedom of speech or expression - Limitations on - Imposed by employment - A supervising income tax auditor with Revenue Canada publicly opposed in an increasingly vitriolic and vituperative manner the policies of the Canadian government on metric measurement conversion and the Canadian Charter of Rights and Freedoms - His attacks included attacks on the character of the Prime Minister - He was suspended twice, then dismissed, when he refused to temper his criticism - The Supreme Court of Canada upheld the second suspension and the dismissal - The court held that engaging in sustained and highly visible attacks on major government policies and personalities violated the balance between freedom of expression and the government's need to maintain an impartial and effective public service - See paragraphs 28 to 44 - The court held that, although direct evidence of impairment to job performance was usually necessary, impairment could be inferred, where the civil servant's occupation was both important and sensitive and the substance, form and context of his criticism was extreme - See paragraphs 45 to 50.

Labour Law - Topic 9158.2

Public service labour relations - Discipline and dismissal of public servants - Dismissal - Cause for - What constitutes - Public criticism of employer - A supervising income tax auditor with Revenue Canada publicly opposed in an increasingly vitriolic and vituperative manner the policies of the Canadian government on metric measurement conversion and the Canadian Charter of Rights and Freedoms - His attacks included attacks on the character of the Prime Minister - He was suspended twice, then dismissed, when he refused to temper his criticism - The Supreme Court of Canada upheld the second suspension and the dismissal - The court held that engaging in sustained and highly visible attacks on major government policies and personalities violated the balance between freedom of expression and the government's need to maintain an impartial and effective public service - See paragraphs 28 to 44 - The court held that, although direct evidence of impairment to job performance was usually necessary, impairment could be inferred, where the civil servant's occupation was both important and sensitive and the substance, form and context of his criticism was extreme - See paragraphs 45 to 50.

Labour Law - Topic 9173

Public service labour relations - Discipline and dismissal of public servants - Discipline - Cause for - What constitutes - Public criticism of employer - A supervising income tax auditor with Revenue Canada publicly opposed in an increasingly vitriolic and vituperative manner the policies of the Canadian government on metric measurement conversion and the Canadian Charter of Rights and Freedoms - His attacks included attacks on the character of the Prime Minister - He was suspended twice, then dismissed, when he refused to temper his criticism - The Supreme Court of Canada upheld the second suspension and the dismissal - The court held that engaging in sustained and highly visible attacks on major government policies and personalities violated the balance between freedom of expression and the government's need to maintain an impartial and effective public service - See paragraphs 28 to 44 - The court held that, although direct evidence of impairment to job performance was usually necessary, impairment could be inferred, where the civil servant's occupation was both important and sensitive and the substance, form and context of his criticism was extreme - See paragraphs 45 to 50.

Cases Noticed:

Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; 27 N.R. 103; 25 N.B.R.(2d) 613; 51 A.P.R. 613, appld. [para. 24].

Service Employees' International Union, Local Re 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, refd to. [para. 25].

Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Commission, [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 25].

Trans Mountain Pipe Line Co. Ltd. v. National Energy Board et al., [1979] 2 F.C. 118; 29 N.R. 44 (C.A.), consd. [para. 26].

Canadian Lift Truck Co. Ltd. v. Deputy Minister of National Revenue for Customs and Excise (1956), 1 D.L.R.(2d) 497 (S.C.C.), consd. [para. 26].

Dominion Engineering Works Limited v. Deputy Minister of National Revenue (Customs and Excise) et al., [1958] S.C.R. 652, refd to. [para. 26].

Hetex Garn A.G. v. Anti-Dumping Tribunal, [1978] 2 F.C. 507 (C.A.), refd to. [para. 26].

Statutes Noticed:

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 28(1)(b) [para. 22].

Authors and Works Noticed:

MacDonnell Commission Report (U.K.), [para. 42].

Counsel:

Morris W. Wright, Q.C., and Andrew J. Raven, for the appellant;

T.B. Smith, Q.C., and Graham Garton, for the respondent.

This case was heard on February 14, 1985, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On December 10, 1985, Dickson, C.J. C., delivered the following judgment for the Supreme Court of Canada: